Printed publication may include web pages

1.  Printed publication being a category of prior art includes online content

Patent laws require that the invention be new  and non obvious over existing information in the public domain.  Information about the invention can enter the public domain and become prior art through various means including but not limited to posting information on the internet which may be deemed a printed publication.

On the internet, a web page is a “printed publication” type of prior art if a person of ordinary skill in the relevant art would have been able to locate the web page before the critical date either through an inquiry on a search engine, or possibly a direct link or a chain of links leading to the web page.  Blue Calypso, LLC v. Groupon, Inc. (Fed. Cir. March 1, 2016).

a.  Buried reference though available to the public may not be a printed publication

In Blue Calypso, the Federal Circuit considered the circumstance when an online publication would be prior art against a patent application and deemed a printed publication.  Before the growth of the internet, the defendant to a patent infringement lawsuit would contest the validity of the patent by bringing up some buried reference in some library somewhere to show that the patented idea was old and that the patent should be invalidated as being anticipated or obvious.  This line of arguments was effective if the buried reference was publicly accessible.

A buried reference such as a research paper was publicly accessible if it was shelved and indexed by subject and not merely by title and author’s name.  The court required the buried reference to be cataloged or indexed in a meaningful way so that an interested party would be able to find it with reasonable effort.

b.  One in a trillion web page could still qualify as a printed publication

In the internet realm, with billions, if not trillions of web pages, the Federal Circuit previously considered whether an online web page is prior art as a printed publication.  In Voter Verified, Inc. v. Premier Election Sols., Inc., 698 F.3d 1374, 1380 (Fed. Cir. 2012), the Federal Circuit held that an online publication is prior art if the publication was well known to the community interested in the subject matter of the reference and there were numerous related articles.   As such, even though the online publication didn’t index its articles, the online web page was publicly accessible, and thus a printed publication for purposes of prior art.

2.  Standard for when a web page qualifies as a printed publication

In the current case, Blue Calypso, Groupon introduced a purported online web page as prior art in an attempt to invalidate the Blue Calypso patent.  In analyzing whether the online web page is prior art, the Federal Circuit held that it was not publicly accessible, and thus not a printed publication or prior art.  In support thereof, there was no evidence that a person interested in the subject matter of the present invention would be independently aware of the purported prior art online web page.  No evidence was presented that a query of a search engine before the critical date, using any combination of search words, would have led to the purported prior art online web page.  No evidence was presented to show a sufficiently definite road map leading to the purported prior art online web page.

For the purposes of online content, the road map need not give turn by turn directions but enough details must be provided to give reasonable assurances that an interested person would find the purported prior art online web page.  The Federal Circuit did not require a showing that someone actually could find the purported prior art online reference prior to the critical but only required reasonable assurances that one could find the purported prior art online reference.  Groupon suggested that one of ordinary skill in the art would have been prompted to do additional research and would have found the purported online prior art web page.  Nevertheless, the Federal Circuit said that there is no evidence that an interested party could navigate from one website to another to ultimately find the purported prior art online web page.

Based on this line of reasoning, the Federal Circuit held that the purported prior art online web page is not prior art.

3.  Web pages are difficult to establish as a printed publication

The case suggests additional difficulty in trying to establish online content as prior art.  For example, this case mentions that the events and the road map must have existed prior to a critical date.  For purposes of invalidating a patent as anticipated or obvious, the critical date is the filing date of the patent application.  The defendant would be searching for online evidence, dated prior to the effective date, months to years after the filing date of the patent application.  Evidence is lost over time and memories fade.

The content on the internet changes.  In my estimation, it would be difficult to gather the evidence of what a prior search query would have yielded before the critical date which is typically months and years before the lawsuit arises.  One of the difficulties is establishing a sufficient level of certainty that a specific set of web pages existed prior to the critical date and how an interested party would have arrived at the purported prior art online web page prior to the critical date.

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