The Precedential Opinion Panel (POP) of the Patent Trials and Appeals Board (PTAB) recently answered the question, “What is required for a petitioner to establish that an asserted reference qualifies as a ‘printed publication’ at the institution stage?” According to the POP, “[f]or institution of an inter partes review, a petitioner must establish a reasonable likelihood that a reference is a printed publication.” Hulu, LLC. v. Sound View Innovations, LLC (IPR2018-01039), Paper 29 dated December 20, 2019, at 2.

In Hulu, LLC. v. Sound View Innovations, LLC, petitioner Hulu alleged that claims of patent owner Sound View’s U.S. Patent No. 5,806,062 (the ’062 patent) are invalid as obvious over Dougherty, a textbook that, according to Hulu, was publicly available prior to the 1995 filing of the application that resulted in the ’062 patent. Hulu’s obviousness argument relied upon a copy of Dougherty bearing a copyright date of 1990, a printing date of November 1992 and an ISBN date of August 1994 (Dougherty 1994), which Hulu submitted as an exhibit in its petition. Hulu supported the public accessibility of Dougherty, however, by submitting the table of contents of a copy of Dougherty bearing a copyright date of 1991, a printing date of March 1991 and an ISBN date of January 1992 (Dougherty 1992). The Dougherty 1992 exhibit was date-stamped by the Cornell University Library and was accompanied by an affidavit from the librarian at the Cornell University Library, which stated that Dougherty was indexed and available to the public on September 16, 1992.