Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in Weber, Inc. v Provisur Tech., Inc., reversing the Patent Trial and Appeal Board (“PTAB”) and holding a copyrighted owner’s manual disseminated to about ten purchasers did qualify as a “printed publication.”
Provisur sued Weber for infringing its patents related to a commercial food slicer. Weber filed an IPR challenging the validity of the patents based on an old Weber food slicer owner’s manual. The PTAB found that the manual did not qualify as a printed publication because it was not publicly accessible. The PTAB reasoned that the operator’s manual was distributed to only about ten customers, and it was subject to confidentiality restrictions based on a copyright notice and Weber’s terms and conditions of sales. Weber appealed arguing that the PTAB misapplied public availability precedent and misinterpreted the evidence.
The Federal Circuit reversed finding the owner’s manual was a printed publication because it was publicly accessible. The Court explained the hallmark of public accessibility is whether the interested members of the relevant public could locate the document with reasonable diligence. Here the manual was made to be disseminated to the relevant public. The manual could be obtained by purchasing the food slicer, requesting the manual from Weber’s employees, and from trade shows or at Weber’s factory showroom.
The Court also rejected the PTAB’s finding that the manuals were subject to confidentiality restrictions. Unlike the case the PTAB relied upon, Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319 (Fed. Cir. 2009), neither the copyright notice nor the terms and conditions here demonstrate, as in Cordis, “clear evidence …giv[ing] rise to an expectation that the disclosures will remain confidential.” Despite the copyright notice, Weber expressly instructed customers selling the food slicer to transfer the manual to repurchasers. Weber’s terms of sale had “no dispositive bearing on Weber’s public dissemination of the operating manuals to owners after the sale has been consummated.” Thus, the Court held that the PTAB’s determinations were not supported by substantial evidence and the manual was a printed publication.
