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PTAB Adopts Dueling Evidentiary Standards

Law360, New York (July 22, 2014, 10:27 AM EDT) -- In proceedings before the Patent Trial & Appeal Board, whether a reference is publicly accessible and therefore qualifies as a prior art printed publication depends on the "facts and circumstances surrounding the reference’s disclosure to members of the public.”[1] When a patent challenger in a PTAB case lacks evidence showing the specific date that a document became publicly accessible, a common approach for qualifying that document as a printed publication is to submit evidence of a routine business practice. But in cases before the PTAB, the evidentiary standard for establishing routine business practice appears far from settled.

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