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Patent practice: Prior Art for Patent Validity

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Idea and Prior Art

In patent practice, 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.

Contact Nexus Law by email at or by visiting our website at to see how we can help resolve your prior art questions.

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