Printed publication need not be easily searchable online if sufficiently disseminated

Federal Circuit affirms claim construction and summary judgment that an online posting was an invalidating "printed publication."

Suffolk Tech. LLC v. AOL Inc.,__ F.3d __ (Fed. Cir. May 27, 2014) (Rader, PROST, Moore) (E.D. Va.: Ellis) (3 of 5 stars)

Claim Construction:  The Federal Circuit rejected the patentee's argument that the term "generating said supplied file" could include generating a file based on the content of a requesting webpage, rather than based only on a "received identification signal." Each claim step referenced the identification signal and did not identify another mechanism for generating the file. The specification, when read in context, did not require a broader construction. And the narrower construction did not exclude the preferred embodiment.

Printed Publication: An online "Post" on a Usenet newsgroup qualifies as "printed publication" under §102 because "a printed publication need not be easily searchable after publication if it was sufficiently disseminated at the time of its publication." Slip op. at 11. Noting that "the Post elicited at least six responses over the week following its publication," and that "many more people may have viewed the Post without posting anything themselves," the Fed Cir concluded that "the Post was sufficiently disseminated to those of skill in the art to be considered publicly accessible." Id. at 12. The Federal Circuit distinguished SRI International, which identified a fact issue about whether a file posted to a non-indexed FTP server was publicly accessible because the file there "was not publicized or placed in front of the interested public." Id. The patentee was also incorrect to argue that the Post was not a publication because the newsgroup would be hard to locate and was directed at "newbies" rather than the skilled artisan.

Other Issues: None of the patentee's remaining arguments precluded summary judgment of invalidity: (1) there was no genuine issue about the Post's "accuracy and reliability" where a witness testified to its authenticity and the patentee presented "no affirmative evidence challenging the Post's material facts," id. at 13; (2) the district court did not abuse its discretion by excluding the patentee's supplemental expert report on validity as untimely where an intervening claim construction "did not vary greatly from the parties' proposals," id. at 14; and (3) attorney argument about how the patentee would attack the invalidity case through cross-examination did not create a fact issue because "[t]o hold otherwise would improperly empower cross-examination with the ability to defeat nearly all motions for summary judgment." Id. at 15.