Can an Internet Reference Be a "Printed Publication"?

Abstract

Much of the information to the public is provided by the Internet today. The Internet has also become increasingly popular among researchers who now turn to it for articles, journals, and online databases. Therefore, the question of whether an Internet reference is a "printed publication" is critical for today's inventors, patent attorneys, and judges. It is important for inventors and patent attorneys because they decide whether to pursue a patent based on the existing prior art. It is likewise important for judges because judges may be asked to resolve a dispute where the party challenging a patent's validity offers an Internet reference as the potentially invalidating prior art. This Article argues that an Internet reference is a "printed publication" within the terms of Section 102 if it is accessible to the public and credible. This Article begins with a brief review of the "printed publication" requirement of Section 102. Next, it discusses two different theories that emerged interpreting the "printed publication" bar to patentability, focusing, in particular, on the impact of technological advancement on judicial interpretations of § 102. The Article then explores existing commentary on the matter and argues that while the commentaries address many crucial aspects of the statutory bar, they may nevertheless be insufficient in defining whether an Internet reference is a "printed publication." The article continues by recommending that a "printed publication" requires both public accessibility and credibility. Accessibility should be dependent on the author's or inventor's intent to share his work with the public. Moreover, the Federal Rules of Evidence may be used to ensure the integrity of a reference. Lastly, the article analyzes the unanswered question in MercExchange v. eBay of whether a newsgroup posting is a "printed publication" within the terms of §102. The article concludes that the newsgroup posting in MercExchange was not a "printed publication" because it was not publicly accessible; however, newsgroup postings could be "printed publications" if certain other requirements are met.