Earlier today, the Federal Circuit released a decision concerning what constitutes a printed publication in GoPro Inc. v. Contour IP Holding LLC. The court reversed the Patent Trial and Appeal Board (“PTAB”) and held that GoPro’s catalog made available at a tradeshow prior to the critical date qualified as a printed publication. GoPro had filed a petition for inter partes review to challenge patents owned by Contour IP Holdings, asserting the catalog was prior art. The PTAB upheld the patents’ validity.
The case considered whether a person skilled in the art was likely to attend the tradeshow. The patents’ subject matter, and the person skilled in the art, involved point of view (“POV”) action sports video cameras. The 2013 Tucker Rocky Dealer Show was open to dealers, and not the public, and Tucker Rocky was a wholesale distributor who did not sell to the public. Denying GoPro’s challenge, the PTAB held that GoPro failed to prove the dealer show was advertised or announced to the public. The PTAB held that the catalog was not disseminated or otherwise made available such that persons interested and ordinarily skilled in the subject matter who exercised reasonable diligence could have located it. The PTAB found that a person ordinarily skilled in the art would not be interested in the dealer show because it was not an academic conference or camera industry conference, but rather a dealer show for action sports vehicles like motorcycles, motorbikes, ATVs, snowmobiles, and watercraft.
Reversing, the Federal Circuit held that the expertise of the target audience is not dispositive of accessibility. It is only one factor to be considered. “Rather, our case law directs us to also consider the nature of the conference or meeting; whether there are restrictions on public disclosure of the information; expectations of confidentiality; and expectations of sharing the information.”
“The fact that the dealer show is focused on action sports vehicles is not preclusive of persons ordinarily skilled in the art from attending to see what POV digital cameras were being advertised and displayed. As described in the patents, a primary purpose of POV cameras is for use on vehicles in extreme action environments, such as the ones advertised at the Tucker Rocky Dealer Show.”
The Federal Circuit continued: “Although the trade show was only open to dealers, there is no evidence or indication that any of the material disseminated or the products at the show excluded POV action cameras, or information related to such cameras. Contrary to the Board’s conclusion, the attendees attracted to the show were likely more sophisticated and involved in the extreme action vehicle space than an average consumer. Thus, it is more likely than not that persons ordinarily skilled and interested in POV action cameras were in attendance or at least knew about the trade show and expected to find action sports cameras at the show.”