The U.S. Court of Appeals for the Federal Circuit recently held that a slide show that was printed and then displayed on a poster board for approximately three days at a meeting of chemists and at a university was a "printed publication" under §102(b). The slide show was not "published" in the sense of copies being disseminated, nor was it catalogued or indexed in any library. In re Klopfenstein, Case No. 03-1583 (Fed. Cir. Aug. 18, 2004).
In this case two inventors from Kansas State University applied for a patent (the `950 application) that disclosed methods of preparing foods comprised of extruded soy cotyledon fiber. Approximately two years earlier the inventors presented a printed slide show at a meeting of the American Association of Cereal Chemists that disclosed every limitation of the `950 application. The presentation was pasted onto poster boards and displayed for two and a half days after the meeting. A little later, the same slide presentation was displayed at Kansas State University for less than a day. An examiner rejected the `950 application reasoning that it was anticipated by the slide show. The Board of Patent Appeals and Interferences (Board) upheld the examiner’s decision. The applicant appealed.
In upholding the Board’s decision, the Federal Circuit rejected the appellant’s arguments that the slide show was not a "printed publication" for purposes of §102(b) because copies of the slide show had not been disseminated and/or indexed in a library or database. Instead, the court stated that "the key inquiry is whether or not a reference has been made ‘publicly accessible.’" Citing to past precedent, where students theses were indexed in a library and made publicly accessible, the court reasoned that dissemination and indexing by themselves were not the only factors to consider. Rather, "the entire purpose of the ‘printed publication’ bar was to ‘prevent withdrawal’ of disclosures ‘already in the possession of the public by the issuance of the patent.’"
In this case, the Court balanced four factors: the length of time the display was exhibited; the expertise of the target audience; the existence (or lack thereof) of reasonable expectations that the material displayed would not be copied; and the simplicity or ease with which the material could have been copied.
Applying these factors the Court noted that the slide show was prominently displayed to the public for approximately three cumulative days, giving the public the opportunity to process and retain the information. A large subsection of the general public who viewed the posters included those ordinarily skilled in the art of cereal chemistry and agriculture, making it easier for them to retain the displayed material due to their interest in the subject. There was no expectation that the information on the posters would not be copied or reproduced by those viewing it. Finally, the 14 slide presentation was simple enough making it more likely that members of the public "could learn it by rote or take notes adequate enough for later reproduction." For these reasons the court held that the presentation was sufficiently publicly accessible to count as a "printed publication" under §102(b).
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