How is the public accessibility of an electronic publication determined?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
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.”