New CAFC « guidelines » to asses the availability to the public of a video and a slide presentation cited as prior art


CAFC, Medtronic, Inc. v. Barry, 11 June 2018

(Ref : 2017-01170 (Darts-ip ref : darts-147-949-F-en)

On June 11, 2018, the Court of Appeal for the Federal Circuit (CAFC) had the possibility to determine some guidelines in order to assess the availability for the public when it comes to prior art based on a video and a slide presentation.

This decision illustrates some common considerations about materials that are distributed at meetings or conferences.

The facts were as follows. The concerned video had been distributed at 3 conferences across the United States, attended by 20 to 55 spinal surgeons.

Concerning the presentation, copies of the presentation had been distributed at two of these conferences.

It is important to note that the video and slide presentation had not been stored for public access following the conferences.

Under these circumstances, the CAFC concludes that the assessment of the « availability to the public » criteria requires analyzing whether the video and the slide presentation were sufficiently disseminated at the time of their distribution during the conferences.

First, the CAFC vacated the PTAB’s conclusion (Patent Trial and Appeal Board) on the fact that a video and slide presentation were insufficiently publicly available to the public to be qualified as printed publications.

Moreover, the Court remanded to instruct the PTAB to further evaluate the size and nature of the meetings and whether they are open to  people interested in the subject matter of the material disclosed are important considerations.

Another factor is whether there is an expectation of confidentiality between the distributor and the recipients of the materials.

Even if there is no formal, legal obligation of confidentiality, it still may be relevant to determine whether any policies or practices associated with a particular group meeting would give rise to an expectation that disclosures would remain confidential…