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Printed Publication as Prior Art: PTAB Guidance, Practical Considerations for Patent Holders and Patent Challengers

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Friday, March 29, 2024

Recorded event now available

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The CLE course will provide an in-depth discussion for counsel on the history and current state of the law when a non-patent prior art reference qualifies as a "printed publication" for purposes of a patentability challenge. The panel will discuss recent Federal Circuit, district court, and PTAB decisions and the emerging guidance for assessing whether a reference is sufficiently "publicly accessible" to be considered a "printed publication" under 35 U.S.C. Section 102. The panel will also review strategic approaches for demonstrating or disputing that a reference qualifies as printed publication prior art.


The question of what constitutes prior art in a printed publication is significant in many patent validity challenges. A patent claim may be held unpatentable if the claimed invention was, among other things, "patented, [or] described in a printed publication ... before the effective filing date of the claimed invention." A patentability challenge based on non-patent literature must be supported by evidence that a reference qualifies as a printed publication.

In recent decisions, the Federal Circuit has reiterated that whether a reference is a printed publication is a "case-by-case inquiry into the facts and circumstances surrounding the reference's disclosure to members of the public." In one example, the court affirmed the PTAB's holding that the FDA advisory meeting minutes, transcripts, and slides were sufficiently accessible to persons of ordinary skill in the art because the materials at issue were available through hyperlinks provided in a Notice in the Federal Register, among other things.

Listen as our authoritative panel of patent attorneys addresses the public accessibility standard and evidence relied upon by courts and other tribunals in considering whether a reference qualifies as "printed publication" prior art. The panel will also offer guidance for demonstrating (or arguing against) printed publication prior art.



  1. Public accessibility standard
    1. Meeting the standard
    2. Klopfenstein factors
  2. Recent PTAB and federal court decisions
  3. Printed publication issues
  4. Documents stored in public/private libraries
    1. Conference proceedings
    2. Oral and slide presentations
    3. Websites, online texts, or documents
    4. Patent file histories
    5. Copyright notice
    6. Video recordings/web video clips
    7. Others
  5. Guidance for demonstrating (or arguing against) printed publication prior art


The panel will review these and other priority issues:

  • How is the PTAB evaluating public accessibility standards and evidence?
  • What lessons can patent counsel draw from recent decisions when assessing print publications as prior art?
  • What role do "confidentiality expectations" or restrictions on dissemination play in the public accessibility analysis?


Hartenstein, Marlee
Marlee R. Hartenstein

Jones Day

Ms. Hartenstein's practice focuses on patent litigation matters across numerous industries, from medical devices to...  |  Read More

Johnson, Matthew
Matthew Johnson

Partner, Co-Chair PTAB Subpractice
Jones Day

Mr. Johnson is one of the firm's primary contacts on practice before the USPTO's Patent Trial and Appeal Board,...  |  Read More

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