Posted in: Eric Guttag, Federal Circuit, Guest Contributors, Internet, IP News, IPWatchdog.com Articles, Patent Fools™
In 2009, I wrote for IPWatchdog about the case of In re Lister where the patent applicant barely avoided a potentially fatal “printed publication” bar based on his own copyrighted manuscript that was searchable in two commercial databases, but only after the critical “bar date.” See CAFC Rules Patent Applicant’s Own Copyrighted Manuscript Not Publicly Accessible. That was followed by a much more comprehensive article that I wrote which was published in 2011 on applying the “printed publication” bar to electronically posted documents. See Guttag, Applying the Printed Publication Bar in the Internet Age: Is It as Simple as Googling for Prior Art. That 2011 article included a discussion of the Lister case, but focused primarily on the 2008 case of SRI International, Inc. v. Internet Security Systems, Inc. where a majority of the Federal Circuit panel ruled that there were “genuine issues of material fact” sufficient to preclude a grant of summary judgment that an electronic document temporarily posted (but freely accessible) on the FTP server of the patentee (SRI International) was a “printed publication” bar.
One of the “revelations” I discovered in researching and writing that 2011 article is that the “printed publication” bar is really two distinct and parallel doctrines that the Federal Circuit has all too often unfortunately commingled together. The first, more active form is the “dissemination” doctrine. The second, more passive form is the “publicly accessible” doctrine (sometimes referred to as “constructive publication”).
The recent case of Voter Verified, Inc. v. Premier Election Solutions, Inc. (Nov. 5, 2012) is the latest example of the Federal Circuit being oblivious to the parallel existence of these two doctrines (and especially the requirements for each of these distinct doctrines) for applying the “printed publication” bar.