US Court of Appeal Addresses What is Deemed “Publicly Accessible” for Prior Art Printed Publications

In GoPro, Inc v Contour IP Holding, the US Patent Trial and Appeal Board (PTAB) found that a GoPro catalog disseminated at a trade show tailored to dealers and wholesale distributors did not qualify as a prior art printed publication under Section 102(b) of 35 U.S. Code Part II because it was not “publicly accessible.” GoPro appealed the decision to the Court of Appeal for the Federal Circuit (CAFC), where the CAFC vacated and remanded the PTAB’s decision and clarified what constitutes “publicly accessible.”

The CAFC held that the PTAB applied the case law regarding accessibility too narrowly in its decision. Although the expertise of the target audience can be a factor in determining public accessibility, this factor alone is not enough. Other considerations such as the nature of the conference or meeting, whether there are restrictions on public disclosure of the information, expectations of confidentiality, and expectations of sharing the information should also be taken into account when evaluating public accessibility.

The CAFC further held that the standard for public accessibility is one of “reasonable diligence” to locate the information by “interested members of the relevant public.”  In applying this test to the case at bar, the CAFC found that GoPro met its burden to show that its catalog is a printed publication under section 102(b), as “dealers of [point-of-view] cameras would encompass the relevant audience such that a person ordinarily skilled and interested in POV action cameras, exercising reasonable diligence, [would] have been aware of the show. Additionally, the GoPro Catalog was disseminated with no restrictions and was intended to reach the general public.”

The CAFC sent the matter back to the PTAB to evaluate the merits of GoPro’s unpatentability claims in consideration of the GoPro catalog as prior art.

Summary By: Hashim Ghazi