Before Newman, O’Malley, and Taranto. Appeal from the Patent Trial and Appeal Board.
Summary: Evidence of a prior art reference’s publication date submitted after an IPR petition may be appropriately considered by the Board if the evidence is a legitimate reply to a challenge by the patent owner.
Twitter requested two Inter Partes Reviews of a patent assigned to VidStream LLC. having a priority date of May 9, 2012. Twitter asserted that the system was not patentable as obvious, identifying a book authored by Anselm Bradford and Paul Haine (“Bradford”) as prior art against VidStream’s patent.
The Federal Circuit affirmed the Board’s decision. The Federal Circuit explained that both parties were permitted an opportunity to provide evidence concerning the reference date of the Bradford book, that VidStream was provided with an opportunity to respond to Twitter’s evidence submitted in its replies, and that the collective evidence submitted well supports the Board’s finding that Bradford was published and publicly available before VidStream’s 2012 patent priority date.