“What Qualifies as Prior Art?”April 15, 2019
In an article published in North Carolina Lawyers Weekly and South Carolina Lawyers Weekly on April 15, 2019, partner Eric M. Brusca, Ph.D. discusses what qualifies as prior art in an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB).
To challenge a patent claim at the PTAB, a petitioner must prove unpatentability, including challenges based on prior art, and have evidence to show that any prior art is printed and publicly accessible.
“Recent decisions emphasize the difficulty petitioners may face when relying on “non-traditional” prior art,” says Brusca. He highlights several noteworthy decisions concerning what does and does not qualify as prior art, and that showcase the need for petitioners to include sufficient evidence that demonstrates their claim.
“Petitioners must often look beyond the face of the publication in order to convince the PTAB that a publication was publicly accessible and available to persons interested and ordinarily skilled in the art,” explains Brusca.