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Existence != Access – Public Accessibility Must be Clear, PTAB Litigation Blog

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In a recent decision, the Patent Trial and Appeals Board denied institution of inter partes review after holding that Petitioner Microsoft’s key obviousness reference did not qualify as a printed publication.  Microsoft Corp. v. ThroughPuter, Inc., IPR2022-01566, Paper 13 (May 31, 2023).  The Patent Owner, ThroughPuter, argued that there was no evidence the reference was publicly accessible prior to the patent priority date.  The PTAB agreed, and found that because there was insufficient evidence the reference was publicly accessible, it did not qualify as an invalidating printed publication.

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