![]() ![]() When the reference is a book, the standard may be met by providing evidence, such as a copyright notice, edition identifiers regarding changes to the book, indications that the book was published by a commercial publisher, and assignment of an International Standard Book Number. Presenting a prima facie standard would be consistent with the “reasonable likelihood” institution standard for IPRs. According to Hulu, the petitioner must present a prima facie case that the reference qualifies as a “printed publication,” such as conventional markers on the document that would generally be expected to be found on documents of the same kind. Unsurprisingly, Hulu proposes a lower threshold at the institution stage of an IPR petition. Also, the burdens of production and persuasion rest with the plaintiff to establish its claim, even if the opponent has not yet presented any evidence. In such a motion to dismiss, the district court may dismiss the plaintiff’s claims, but it is not allowed to render judgment in favor of the plaintiff. Sound View bolstered its approach by comparing institution decisions to district court bench trial decisions on motions to dismiss that occur after the plaintiff’s case-in-chief. Sound View focuses on the ideas that the IPR petition must present the petitioner’s case-in-chief and that there are limited opportunities to supplement the record after the petition. Sound View argues that the “reasonable likelihood that the petitioner would prevail” is a high threshold at the institution stage. The following sections summarize the parties’ proposed standards at the institution stage when a petitioner seeks to establish that an asserted reference qualifies as a printed publication. ![]() The POP permitted further briefing by the parties and also authorized amicus curiae to submit briefs.īriefing for the POP is complete. The POP will address the following question: “ What is required for a petitioner to establish that an asserted reference qualifies as “printed publication” at the institution stage?” Hulu, LLC v. Hulu requested reconsideration by the Precedential Opinion Panel (“POP”) to address “whether a well-known publisher’s copyright notice is sufficient evidence of the date of a publication’s public availability for purposes of institution of inter partes review, where the patent owner does not submit any evidence to the contrary.” On April 3, 2019, the request was granted to address a broader version of Hulu’s request. The Board declined to speculate as to when or whether the book was sufficiently publicly accessible without further evidence, such as the routine practices of the publisher. The Board accepted that the book had a copyright date of 1990 and that the copyright owner was O’Reilly & Associates, Inc., but stated “ copyright date does not indicate anything more than the author indicates this is the date the work was fixed in a tangible medium of expression, i.e., first published.” Id. The Board denied institution of the IPR after finding Hulu did not provide sufficient evidence that the book was publicly accessible to qualify as prior art. Hulu’s obviousness challenge was based on a single prior art reference, Sed & Awk, a book published in November 1990 by O’Reilly & Associates, Inc. The ’062 patent is directed to creating data analysis applications using reusable software operators. Hulu, LLC sought inter partes review (“IPR”) of U.S. ![]() An upcoming Precedential Opinion Panel (“POP”) at the Patent Trial and Appeal Board (“PTAB” or “the Board”) may offer improved clarity for petitioners and patent owners when a petitioner relies on non-patent literature in challenging a patent.
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