The indexing of an online publication describing an invention, while relevant to questions of public accessibility and obviousness, is no more important than other factors pointing to the article’s availability to persons interested and ordinarily skilled in the subject matter or art.

The defendants in this Election Week decision were accused of infringing a patent for an electronic voting machine. The patentee appealed the district court’s holding that invalidated one claim for obviousness because an article available online on the critical date was publicly accessible prior art.

The Federal Circuit affirmed the district court’s decision regarding obviousness. The patentee failed to prevail on its argument that an article online is only a publicly accessible “printed publication” if it was indexed on the critical date by a commercial search engine. Instead the court positioned indexing as one among many relevant ad hoc factors for both online and traditional publications, with none being determinative. While the article may not have been indexed on the critical date, the alleged infringers showed that it was publicly accessible because the article appeared on a publication Web site that: was well known to the interested community, extensively covered the relevant topic, treated all its articles as public disclosures, freely permitted easy copying of content, and supported an intrasite search tool that retrieved results with simple search terms. The ultimate question is whether reference material could be located on the critical date with reasonable diligence by persons interested and ordinarily skilled in the subject matter or art. The publication in this case met the test.

A copy of the opinion can be found here.