Poster Presentation Constitutes a “Printed Publication”
August 18, 2004
Last Month at the Federal Circuit - September 2004
Judges: Prost (author), Michel, and Schall
In In re Klopfenstein, No. 03-1583 (Fed. Cir. Aug. 18, 2004), the Federal Circuit affirmed a decision of the Board, which upheld the PTO’s denial of Patent Application Serial No. 09/699,950 (“the ‘950 application”) because the applicants had described the invention in a printed publication more than one year prior to applying for a patent.
Appellants filed the ‘950 application on October 30, 2000, claiming methods of preparing foods containing extruded soy cotyledon fiber (“SCF”), which lowers serum cholesterol levels while raising HDL cholesterol levels. In particular, the ‘950 application disclosed a double-extrusion process, which enhanced SCF’s previously known lowering effect on cholesterol levels.
In October 1998, two years before applying for a patent, Appellants presented the process subsequently claimed in the ‘950 application to a meeting of the American Association of Cereal Chemists. During the meeting, Appellants displayed a copy of the presentation—which disclosed every limitation claimed in the application—on poster boards for two and one-half days. Later that same year, they displayed the same presentation, for less than a day, at an Agriculture Experiment Station at Kansas State University.
The presentation consisted of fourteen slides, including a cover page, an acknowledgement slide, and four slides presenting experimental data in graphical form. Of the eight substantive slides in the presentation, most contained information already known by persons of skill in the art. The presentation did not contain a confidentiality notice, or otherwise alert viewers that they could not copy or disseminate the information it contained. Appellants did not disseminate copies of the slides.
On appeal, Appellants argued that precedent required (1) distribution of copies or (2) indexing in a library or database for a reference to constitute a “printed publication.” The Federal Circuit rejected this assertion, noting that the key inquiry is whether a reference has been made “publicly accessible.” To make this assessment, the Court analyzed (1) the length of time Appellants displayed the presentation, (2) the expertise of the target audience, (3) the lack of reasonable expectation that the audience would not copy the displayed material, and (4) the relative ease of copying the displayed material. The Court stressed that Appellants displayed their presentation for three days to an audience including cereal chemists and took no measures to protect the information it contained. Moreover, the slides contained easily understood bullet points, which a person of skill in the art could easily copy or remember. Given these factors, the Court affirmed the Board’s decision.