On February 1, 2021, the Federal Circuit affirmed the PTAB’s holding that the prior art cited against M&K Holdings’ claims in an IPR dispute were “printed publications”. M&K contended that the references were not publicly accessible, i.e., that interested persons of ordinary skill could not have accessed any of the references by exercising reasonable diligence. The references were presented at conference meetings attended by 200 – 300 interested persons and later distributed through the conference website, although not indexed by subject matter. The court agreed with the Board that skilled artisans would have learned of the conference website, whether by word of mouth or by the endorsement of other prominent organizations, and would have been motivated to track the conference website to ensure that their products and services were consistent with the developing the relevant technical standards. Therefore, the channel through which the references were publicized was prominent or well-known among persons of ordinary skill in the relevant art.
The court also vacated the Board’s finding that M&K’s claim 3 was anticipated because it was not challenged on the grounds of anticipation but under an obviousness theory. The court found that the Board failed to give M&K proper notice of an anticipation theory and deprived them of an opportunity to properly respond to an anticipation challenge.