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Because there are many ways in which a reference may be disseminated to the interested public, public accessibility has been called the touchstone in determining whether a reference constitutes a printed publication bar under 35 U.S.C.S. § 102(b). A given reference is publicly accessible upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence, can locate it. The decision whether a particular reference is a printed publication must be approached on a case-by-case basis. Decision in this field of statutory construction and application must proceed on a case-by-case basis.
The five patents at issue related to security and intrusion detection for computer systems. In 1997, the owner presented a peer-reviewed paper on the subject entitled EMERALD. The trial court granted summary judgment of invalidity in the four patents based on prior art found in the live traffic paper. The trial court also granted summary judgment of invalidity on a fifth patent as anticipated by a 1997 paper presented by the owner.
Was the grant of summary judgment of invalidity in the four patents based on prior art found in the live traffic paper proper?
The court agreed with the trial court that the fifth patent at issue was invalid because its claims were anticipated by the EMERALD paper, which contained a sufficient description so that one skilled in the art would be enabled to practice the claimed security invention. The court held that there were factual issues that precluded the entry of summary judgment of invalidity to the four patents under 35 U.S.C.S. § 102(b). There was not sufficient evidence in the record to show that the live traffic paper was publicly accessible through a printed publication as required under § 102(b). The live traffic paper was placed on a server but the server could not be accessed by the researching public and the paper was placed on the server solely to facilitate peer review.