PTAB Clarifies Public Accessibility Evidentiary Standard

On December 20, 2019, in Hulu, LLC v. Sound View Innovs., the PTAB Precedential Opinion Panel (“POP”) clarified the evidentiary standard for demonstrating public accessibility of a “printed publication” at the institution stage of an Inter Partes Review proceeding.  The POP held that a petitioner must submit sufficient evidence “to establish a reasonable likelihood that the [] reference was publicly accessible before the critical date of the challenged patent,” to qualify the reference as a printed publication for purposes of institution.  Hulu at 3.  The POP explained the “reasonable likelihood” standard is lower than the preponderance of the evidence standard required to prevail in a final written decision.  Id. at 13.  The POP granted petitioner’s request for rehearing and remanded the case to the original merits panel for further consideration of the evidence regarding a text book’s public accessibility.