How is the public accessibility of an electronic publication determined?
The public accessibility of an electronic publication is determined on a case-by-case basis, considering various factors. According to the MPEP, citing Medtronic, Inc. v. Barry:
“The determination of whether a document is a ‘printed publication’ under 35 U.S.C. § 102(b) ‘involves a case-by-case inquiry into the facts and circumstances surrounding the reference’s disclosure to members of the public.'”
Key factors in determining public accessibility include:
- The extent of dissemination
- The ease of searchability or indexing
- The intended audience
- Any restrictions on access
For online content, additional considerations may include:
- Where the information is posted
- Privacy settings or restrictions
- Duration of posting
- Indexing for search engines
The critical question is whether “persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence[] can locate it.”
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2128 - "Printed Publications" As Prior Art,
Patent Law,
Patent Procedure