Can a publicly displayed document be a “printed publication” without being distributed or indexed?

Yes, a publicly displayed document can be considered a “printed publication” even if it is not distributed or indexed, provided it meets certain criteria. According to MPEP 2128.01:

“A publicly displayed document where persons of ordinary skill in the art could see it and are not precluded from copying it can constitute a ‘printed publication,’ even if it is not disseminated by the distribution of reproductions or copies and/or indexed in a library or database.”

The key factor is public accessibility. In In re Klopfenstein, the court considered the following factors to determine if a temporarily displayed reference was sufficiently publicly accessible:

• 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
• The simplicity or ease with which the material displayed could have been copied

Similarly, in Medtronic Inc., v. Barry, the court considered whether conference attendees were expected to maintain confidentiality or were permitted to share the presented materials.

It’s important to note that indexing or searchability is not always necessary for a reference to be considered a printed publication, as stated in Jazz Pharm., Inc. v. Amneal Pharm., LLC.

To learn more:

• public display
• printed publication
• prior art
• public accessibility
• conference presentations