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U.S. patent law Edit

In U.S. patent law, a reference is deemed a printed publication "upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it."[1]

An electronic publication, including an on-line database or Internet publication, is considered to be a "printed publication" within the meaning of 35 U.S.C. §102(a) and (b) provided the publication was accessible to persons concerned with the art to which the document relates.[2]

One need not prove someone actually looked at a publication when that publication is accessible to the public through a library or patent office.[3]

References Edit

  1. In re Wyer, 655 F.2d 221, 210 U.S.P.Q. (BNA) 790 (C.C.P.A. 1981)(full-text) (quoting I.C.E. Corp. v. Armco Steel Corp., 250 F. Supp. 738, 743, 148 U.S.P.Q. (BNA) 537, 540 (S.D.N.Y. 1966)(full-text)) ("We agree that 'printed publication' should be approached as a unitary concept. The traditional dichotomy between 'printed' and 'publication' is no longer valid. Given the state of technology in document duplication, data storage, and data retrieval systems, the 'probability of dissemination' of an item very often has little to do with whether or not it is 'printed' in the sense of that word when it was introduced into the patent statutes in 1836. In any event, interpretation of the words 'printed' and 'publication' to mean 'probability of dissemination' and 'public accessibility' respectively, now seems to render their use in the phrase 'printed publication' somewhat redundant.")
  2. See In re Wyer, 655 F.2d 221, 227, 210 U.S.P.Q. (BNA) 790, 795 (C.C.P.A. 1981)(full-text) ("Accordingly, whether information is printed, handwritten, or on microfilm or a magnetic disc or tape, etc., the one who wishes to characterize the information, in whatever form it may be, as a 'printed publication' * * * should produce sufficient proof of its dissemination or that it has otherwise been available and accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents.'" (citations omitted).). See also v., 73 F.Supp.2d 1228, 53 U.S.P.Q.2d (BNA) 1115, 1119 (W.D. Wash. 1999)(full-text) (pages from a website were relied on by defendants as an anticipatory reference (to no avail), however status of the reference as prior art was not challenged.); In re Epstein, 32 F.3d 1559, 31 U.S.P.Q.2d (BNA) 1817 (Fed. Cir. 1994)(full-text) (database printouts of abstracts which were not themselves prior art publications were properly relied as providing evidence that the software products referenced therein were "first installed" or "released" more than one year prior to applicant's filing date.).
  3. See In re Wyer, 655 F.2d 221, 210 U.S.P.Q. (BNA) 790 (C.C.P.A. 1981)(full-text); In re Hall, 781 F.2d 897, 228 U.S.P.Q. (BNA) 453 (Fed. Cir. 1986)(full-text).

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