Higher Burden of Demonstrating Public Accessibili

Higher Burden of Demonstrating Public Accessibility of a Reference at Final Decision Stage, PTAB Litigation Blog

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In denying Petitioner Medivis, Inc.’s (“Medivis”) Request for Rehearing of the Patent Trial and Appeal Board’s (“PTAB”) Final Written Decision (“FWD”) in Medivis, Inc. v. Novarad Corp. inter partes review, the PTAB found that at the final decision stage a petitioner must establish public accessibility of a reference by a preponderance of the evidence.  Medivis, IPR2023-00042, Paper 37 at 5 (PTAB April 23, 2024) (“Rehearing Decision”).  In the FWD, the PTAB found that Medivis failed to establish the public accessibility of three references that Medivis had cited as a basis for alleging obviousness of certain claims in U.S. Patent No. 11,004,271 (the “’271 Patent”), which relates to a method for augmenting real-time views of a patient with three-dimensional data.  See id., Paper 35 (FWD).  In its decision denying rehearing, the PTAB found that Medivis had failed to demonstrate that the PTAB misapprehended or overlooked any arguments presented regarding public accessibility of the three references.

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