Federal Circuit Summaries

Before Taranto, Plager, and Chen. Appeal from the Patent Trials and Appeals Board.

Summary: In determining whether materials distributed at meetings or conferences are reasonably accessible to the public, the Board must consider numerous factors, not just the exclusive nature and expertise of a group.

This appeal arose from the Board’s final written decisions upholding the validity of all challenged claims in the two patents at issue. The Board held that certain “Video and Slides” that were only distributed in meetings and conferences for a select group of experts in spinal deformity were not reasonably accessible to the public. Thus, the Board concluded the Video and Slides were not prior art and declined to consider grounds relating to the Video and Slides.

The Federal Circuit vacated the Board’s determination that the “Video and Slides” did not qualify as prior art. Distributing the “Video and Slides” to a group of experts did not, without further basis, render those materials accessible or inaccessible simply by virtue of the relative expertise of the recipients and the exclusive nature of the group. A proper analysis required further consideration of: the size and nature of the meetings and whether they are open to people interested in the subject matter of the material disclosed; whether there is an expectation of confidentiality between the distributor and the recipients of the materials; and whether any policies or practices associated with a particular group meeting give rise to an expectation that disclosures would remain confidential irrespective of any formal, legal obligations of confidentiality. The Federal Circuit remanded to the Board to consider whether the “Video and Slides” are publicly-accessible publications for prior art purposes.