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Lewis R. Clayton and Eric Alan Stone

The Patent Office may institute inter partes review (IPR) only based on prior-art patents or printed publications. In Hulu v. Sound View Innovations, IPR2018-01039, the Patent Office’s Precedential Opinion Panel (POP)—which decides issues of exceptional importance involving Patent Trial and Appeal Board (PTAB) policy or procedure—is set to decide what showing an IPR petitioner must make to establish, at the institution stage, that an asserted reference was publicly available prior to the critical date of the challenged patent and thus qualifies as a printed publication. We report here on Hulu and on other cases to have considered this issue.

Scope of Inter Partes Review

An IPR may be instituted only if “there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. §314(a). Those challenges are limited to anticipation or obviousness based on prior-art patents or printed publications:

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