Federal Circuit Addresses Requirements for Printed Publication in M & K Holdings, Inc. v. Samsung Electronics Co., No. 2020-1160 (Fed. Cir. Feb. 1, 2021).

In a case that involved both a presentation and publication, the Federal Circuit in M & K Holdings reiterated that the key inquiry for whether a reference is a “printed publication” under 35 U.S.C. § 102 is “public accessibility.”  The Federal Circuit has promulgated opinions on “public accessibility” relating to documents presented at a conference or meeting and documents made available in a repository (e.g., Internet or library). The “prominence” of either a particular reference or the channel through which the reference was provided can also show “public accessibility.”  A particular website need not have search functionality on the landing page provided an interested user could locate the reference by reasonable diligence. Although it is important whether the repository indexes or categorizes the documents that are available, a showing that a particular reference was actually accessed by the public is not required to prove it is a “printed publication.”   In this case, the pertinent references were title-searchable documents posted on the website of a prominent organization tasked with setting industry standards. While the references at issue were found to be printed publications, the Federal Circuit found that the PTAB erred in finding one of the patent claims invalid under 102 when the IPR petitioner only asserted invalidity under 103.