To use a textbook or other reference to challenge the validity of a patent in a petition for inter partes review (“IPR”), the textbook must have been “publicly accessible” prior to the date of the challenged patent to qualify as a printed publication. Is a copyright notice sufficient evidence that a textbook was publicly accessible? The short answer is no in most, if not all, cases. In Hulu, LLC v. Sound View Innovations, LLC, the PTAB denied Hulu’s IPR petition on the ground that Hulu had not provided sufficient evidence to show that a prior art textbook with copyright and ISBN dates was publicly available as of those dates. As a result, Hulu requested rehearing of the PTAB decision denying institution of inter partes review of the validity of Sound View’s patent, U.S. Patent No. 5,806,062. Hulu argued the decision was in conflict with other PTAB decisions “involving the public availability of an asserted ‘printed publication.’”
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