Whether the art presented in an inter partes review petition is a printed publication has arisen more frequently as Petitioners push the envelope to take advantage of the benefits of IPR proceedings. To that end, the PTAB was given the opportunity to decide the issue of whether a draft IEEE standard could be considered a printed publication in Samsung Elec. Co. v. Rembrandt Wireless Techs., IPR2014-00514. Finding that the placement of the draft standard on a “Working Group” server was akin to placing the file on a server to facilitate peer review, which the Federal Circuit has held is not publication, the Board denied the Petition.
To qualify as a printed publication, a document “must have been sufficiently accessible to the public interested in the art.” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009). Order at 6-7. In this case, Petitioner presented the draft standard, along with the declaration of an editor of the standard. That editor testified that the standard was available on a Working Group server and that announcements were sent when drafts became available. Further, there were no restrictions on who could attend the Working Group meetings, or could provide an email address to be included in the Working Group. Id. at 5.
Patent Owner argued that posting the draft standard to the Working Group server did not make it a printed publication. Further, the Petition did not set forth any evidence regarding the availability of the document to individuals other than members of the group. Id. at 7. There was also no evidence that the group’s meetings were advertised or even announced to the public. Id. at 7.
The Board found that the storage of the prior art was similar to the placement of a file on a server to facilitate peer review in preparation for later publication, which the Federal Circuit has found does not constitute public accessibility. Id. at 8. SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008). Thus, the prior art was determined to not be a printed publication. Because the challenged grounds each relied on this disqualified art, the Petition was denied. Id. at 9, 10.