Distributing and Indexing Not Required To Be A Printed Publication under § 102(b)

In re Klopfenstein, 380 F.3d 1345 (Fed. Cir. 2004)

This case covers interpretation of § 102(b), which prevents a patent from issuing when the invention was described in a printed publication anywhere in the world before the critical date.

Klopfenstein filed for a patent for methods of preparing foods comprising extruded soy cotyledon fiber on October 30, 2000, making the critical date October 30, 1999. In October 1998, he presented a printed slide presentation at a meeting, which disclosed every claim limitation of the invention disclosed in the patent application. The presentation was pasted on posterboard and displayed continuously for the two and a half days of the meeting. In November 1998, the same presentation was on display for less than a day at Kansas State University. At the presentations, there was no disclaimer or notice to the intended audience to prohibit note-taking or copying of the presentation. Finally, no copies of the presentation were disseminated at either presentation, and the presentation was never catalogued or indexed in any library or database.

The issue was whether the presentation was a printed publication under § 102(b). The Federal Circuit first noted that "public accessibility" is the main criteria for § 102(b), and then, since the presentation had never been indexed or distributed to the public, applied a test based on factors including (1) the length of time the display was exhibited; (2) the expertise of the target audience; (3) whether there were expectations that the material would not be copied; and (4) the ease with which the materials could have been copied. The Court subsequently found that the presentation was sufficiently "publicly accessible" to count as a printed publication under § 102(b).

In a footnote, the Court noted that an entirely oral presentation that included no slides or copies of the presentation would not be a “printed publication,” nor would an oral presentation that included a "transient display of slides."