Operating Manuals’ Printed Publication Status: Federal Circuit Overturns PTAB Decision

“Federal Circuit Rules Weber’s Food Slicer Operating Manuals as Printed Publication in Patent Dispute with Provisur Technologies”

Patent Dispute Over “Printed Publication” in Weber, Inc. v. Provisur Technologies, Inc.

by Dennis Crouch

In an intriguing development in patent law, the ongoing debate over what constitutes a “printed publication” under 35 U.S.C. § 102 continues to evolve. The recent case of Weber, Inc. v. Provisur Technologies, Inc., Nos. 2022-1751, 2022-1813 (Fed. Cir. Feb. 8, 2024) has brought this issue back into the spotlight.

In this case, the PTAB initially sided with the patentee, but the Federal Circuit reversed this decision, ruling that Weber’s food slicer operating manuals were indeed a printed publication. This case demonstrates that even documents with limited distribution, such as operating manuals sent to a handful of customers, can meet the public accessibility standard for prior art, depending on the circumstances of disclosure and expectations around further dissemination.

The Patent Dispute Between Weber and Provisur

The case revolved around a dispute between competitor food slicer manufacturers Weber and Provisur. Provisur accused Weber of infringing two of its patents relating to high-speed mechanical slicers used to slice and package meats and cheeses. Weber responded by filing two inter partes review petitions, asserting that the patents were invalid as obvious based on Weber’s own operating manuals for its commercial slicers, in combination with other prior art references.

The Board initially found that Weber had provided enough evidence to support the public availability of the manuals as printed publications. However, in its final written decisions, the Board changed its stance, ruling that the manuals were not sufficiently publicly accessible due to limited dissemination and confidentiality restrictions.

The Federal Circuit’s Reversal

On appeal, the Federal Circuit ruled against the patentee. Writing for the panel, Judge Reyna explained that the key factor in determining whether a reference constitutes a printed publication is public accessibility. The standard for public accessibility is whether interested members of the relevant public could locate the reference with reasonable diligence.

The Federal Circuit gave deference to the PTAB’s determination of inadequate public accessibility, but ultimately concluded that the Board’s decision was not supported by substantial evidence. The record evidence showed that Weber’s operating manuals were accessible to interested members of the relevant public with reasonable diligence. For instance, Weber employees testified that the operating manuals could be obtained either upon purchase of the Weber food slicer or upon request directed to a Weber employee.

Implications of the Decision

The Federal Circuit’s decision in this case has significant implications for what constitutes a “printed publication” in patent law. It suggests that even documents with limited distribution can meet the public accessibility standard for prior art, depending on the circumstances of disclosure and expectations around further dissemination.

The case also raises questions about the role of confidentiality expectations in determining public accessibility. In this case, the Federal Circuit found that the presence of a copyright notice and the limited distribution of the manuals did not prevent them from being publicly accessible. This suggests that the court may take a broad view of what constitutes public accessibility in future cases.

As the debate over what constitutes a “printed publication” under patent law continues, it will be interesting to see how courts interpret this standard in future cases.

Panel: Judges Reyna, Hughes, Stark. Opinion by Judge Reyna.

Arguing counsel: Richard Crudo (Sterne Kessler) for Weber, Inc. and Michael Babbitt (Willkie Farr) for Provisur Technologies, Inc.

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