Hulu, LLC v. Sound View Innovations, LLC, IPR2018-01039, amicus brief filed 5/1/2019. May 7, 2019

This Amicus Brief addresses the question of what is required for a petitioner to establish that an asserted non-patent reference qualifies as a “printed publication” at the institution stage.

As noted in Petitioner’s request for rehearing, the standard required for a petitioner to establish printed-publication status of an asserted non-patent reference has not been consistently articulated or applied by Board panels.

An unsettled question has arisen at the institution stage of IPR, PGR, and CBM proceedings, however. Some IPR institution decisions expressly invoke the public accessibility standard when assessing the issue of printed-publication status.

AIPLA believes that, when the evidence filed with an IPR petition establishes a reasonable likelihood that an asserted non-patent reference was publicly accessible before the critical date, the petitioner has established that the reference qualifies as a printed publication for purposes of institution.