CAFC Holds PTAB Applied Wrong Public Accessibility Standard

Recently, the United States Court of Appeals for the Federal Circuit issued an opinion in Samsung Electronics Co., Ltd. v. Infobridge Pte. Ltd., Nos. 18-2007, 18-2012 (July 12, 2019). Samsung filed two petitions for inter partes review (IPR) challenging an Infobridge patent directed to encoding and decoding video data. The Patent Trial and Appeal Board (PTAB) instituted both IPRs. The institution decisions relied on prior art combinations including the Working Draft 4 of the H.265 standard (“the WD4 reference”), developed by the Joint Collaborative Team on Video Coding (“JCT-VC”). The PTAB upheld the patentability of all challenged claims because it found Samsung failed to show the WD4 reference was publicly accessible before the priority date of the Infobridge patent. Samsung appealed.

The Federal Circuit vacated and remanded. On appeal, Samsung identified three alleged disclosures of the WD4 reference that it contended established public accessibility. The first alleged disclosure was a JCT-VC meeting, which had about 250 participants and focused on developing the WD4 reference. The Court concluded Samsung waived this argument by failing to raise it at the PTAB. The second alleged disclosure involved two websites. One website listed hundreds of documents organized by an identifying number instead of by subject matter, and access to the other website required a login and password. The Court concluded Samsung failed to provide evidence that a person of ordinary skill, exercising reasonable diligence, would have located the WD4 reference on either website. The third alleged disclosure involved an email containing a download link for the WD4 reference sent to a JCT-VC listserv, which included JCT-VC members and other “interested individuals.” The Court concluded that the PTAB erred in its assessment of this alleged disclosure. Specifically, the PTAB had rejected this alleged disclosure because it found the evidence did not establish that enough people of ordinary skill in the art actually obtained the WD4 reference from the download link. The Court explained the proper legal standard for assessing public accessibility is “whether a person of ordinary skill in the art could, after exercising reasonable diligence, access a reference.” There is no requirement to show a reference was actually accessed. Accordingly, the Court vacated and remanded to the PTAB with instructions to consider whether, based on the listserv email, an ordinarily skilled artisan could have accessed the WD4 reference.

 

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