Homework 23: Printed Publication Case Summary

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In re Klopfenstein (2004)

United States Court of Appeals, Federal Circuit

Aug. 18, 2004

The PTO denied the inventor's patent application for methods of preparing foods comprising extruded soy cotyledon fiber (SCF) on the grounds that the invention failed to meet the novelty requirement. The inventor appealed, the Board of Patent Appeals upheld the denial, and the inventor again appealed. The Court of Appeals affirms the decision of the Board of Patent Appeals, holding that the patent fails to satisfy the "printed publication" bar.

The "printed publication" issue arises from the fact that in October of 1998, the inventors, along with another colleague, gave a presentation disclosing limitations of the invention, in which the slides were printed, posted on poster boards, and placed on display for two and a half days during a conference. The same presentation was on display in November 1998 for less than a day at another conference. There was no disclaimer at either of these presentations prohibiting or limiting note-taking or copying of the presentation, although no copies were distributed and the presentation was never cataloged in a library.

The appellants argue that the presentation does not qualify as a "printed publication" because it was not disseminated, nor was it indexed in a library or database. The court rejects the reasoning against dissemination, giving the example of a billboard on a highway, which is certainly not distributed or indexed, but most assuredly is sufficiently accessible to the public. It is, therefore, as court precedent has established, the public accessibility which largely defines whether or not something is a prior art reference. "In other words, distribution and indexing are not the only factors to be considered in a 102(b) "printed publication" inquiry." In this case, the additional factors taken into consideration were: the length of time the presentation was displayed, the level of expertise of the audience, the level of reasonable expectation that the material would not be copied, and the ease with which the material may have been copied.

The court concluded that the presentation did indeed count as a "printed publication" since "The reference itself was shown for an extended period of time to members of the public having ordinary skill in the art of the invention... Those members were not precluded from taking notes or even photographs of the reference. And the reference itself was presented in such a way that copying of the information it contained would have been a relatively simple undertaking for those to whom it was exposed-particularly given the amount of time they had to copy the information and the lack of any restrictions on their copying of the information."