Printed Publications in the Computer Age: The Federal Circuit Addresses FTP Servers in SRI

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In SRI International, Inc. v. Internet Security Systems, Inc., 511 F.3d 1186 (Fed. Cir. Jan 8, 2008), the Federal Circuit recently reviewed its previous case law on the printed publication requirement of 35 U.S.C. § 102(b). The SRI decision indicates that making an otherwise relevant prior art reference openly accessible to individuals via the Internet does not necessarily qualify the reference as a

printed publication. This holding is notable because it suggests that intent may now be a factor in determining whether a publication is publicly accessible, while providing pointed commentary from the Federal Circuit on its own printed publication precedent.

Under 35 U.S.C. § 102(b), an inventor is not entitled to a patent if a printed publication dated more than one year before the filing of the application enables and discloses every element of a claimed invention; in other words, if each element of a claim can be found in a single prior art reference, the invention was already in the possession of the public, and cannot be patented.[1] Congress

introduced this provision in 1836.[2] As technology advanced and new methods of printing were developed, public accessibility became the touchstone for assessing whether a reference is prior art under Section 102(b).[3] The related concept of public dissemination and “availability and

accessibility to persons skilled in the subject matter or art” has also come to play a role in this determination.[4] Whether a reference is a printed publication is highly fact-specific and is determined on a case-by-case basis.[5] It is within this historical context that the Federal Circuit

addressed the invalidity arguments in the SRI case.

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