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GoPro, Inc. v. Contour IP Holding LLC

Reference May Be “Printed Publication” So Long as Relevant Members of the Public, With Diligence, Should Have Been Able to Find it

GoPro, Inc. v. Contour IP Holding LLC, __ F.3d __, 2018 WL ___ (Fed. Cir. July 27, 2018) (REYNA, Wallach, Hughes) (PTAB) (3 of 5 stars)

Fed Cir vacates IPR decisions that GoPro did not prove Contour claims obvious. The Board erred in reasoning that, because GoPro had not shown that a dealer show where it distributed a pre-filing GoPro catalog was promoted to the public, the catalog had not been proved to be a printed publication. “The case law regarding [public] accessibility is not as narrow as the Board interprets it.” Op. at 7. The opinion discusses how the dealer show at issue was not unlike a conference, and though it was open only to dealers, “it is more likely than not that persons ordinarily skilled and interested in POV action cameras were in attendance or at least knew about the trade show and expected to find action sports cameras at the show.” Op. at 9–10. As per Blue Calypso, 815 F.3d 1331 (Fed. Cir. 2016), and Constant, 848 F.2d 1560 (Fed. Cir. 1988), this was sufficient to indicate that members of the relevant public—those skilled in the relevant field of action cameras—exercising reasonable diligence should have been aware of the show.

KEYWORDS: PRINTED PUBLICATION; PUBLIC ACCESSIBILITY