Over the past seven years, inter partes review proceedings have become an increasingly popular tool with which to challenge the patentability of one or more claims of a patent.[1] IPR proceedings are limited to patentability challenges based solely on novelty or obviousness grounds “only on the basis of prior art consisting of patents or printed publications.”[2]

In turn, the term “printed publications” encompass a wide gamut of potential prior art, ranging from presentations[3] and preparatory[4] documents to academic theses,[5] textbooks [6] and journal articles.[7]

The Patent Trial and Appeal Board and the U.S. Court of Appeals for the Federal Circuit have repeatedly considered the question of whether a potential written document constitutes a printed publication and, given the varied nature of written documents, have developed a number of different factors to guide that determination. This article addresses the current state of law applied by the PTAB and Federal Circuit, including potential inconsistencies between those fora.

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Proving Printed Publication As Prior Art In IPR Proceedings