In what can be characterized as a case of first impression, the Federal Circuit has concluded that a “printed publication” under 35 U.S.C. 102(b) includes an article distributed online via a subscription mailing list, made available for FTP download, and available on the web. In Voter Verified, Inc. v. Premier Elections Solutions, Inc., The court concluded that the article qualified as prior art even though there was no evidence that it had been indexed by any commercial Internet search engine before the critical date. The Federal Circuit rejected Voter Verified’s suggestion that a web-based reference must be “searchable by pertinent terms over the internet” to qualify as a prior art “printed publication” as defined by 35 U.S.C. § 102(b). (Slip op. at 7-8.)
Voter Verified also deepened a existing split between the circuits: The Federal Circuit has now joined the Tenth Circuit in using “internet” rather than “Internet.” See U.S. v. Perrine, 518 F.3d 1196 (10th Cir. 2008). Other circuits—including the Second and Seventh Circuits—disagree on this question, and capitalize “Internet.” E.g., Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010); Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2nd Cir. 2009).