Printed Publications and Persons of Ordinary Skill

Did the PTAB in GoPro v. Contour IP Holding Apply an Overly Restrictive Standard?

By Joel D. Sayres and Doowon R. Chung

©2017. Published in Landslide, Vol. 10, No. 2, November/December 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

An inventor is not entitled to a patent if his or her invention was already described in a “printed publication” before the effective filing date.1 This concept seems simple enough. However, the ques- tion of what constitutes a “printed publication” can be tricky. What sort of references are considered printed publication? What level of public dissemination or accessibility is required? Is it necessary that the public at large can access a reference for it to constitute invalidating prior art, or is it sufficient that only certain members of the public have such access? Is it necessary that such members of the public view, understand, and retain the teachings of the reference? Do product catalogs distributed by a company to potential customers or resellers at a trade show qualify?

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