Grüneberg and Myers - Intellectual Property Law


News and Recent Developments

Public Disclosure of a Spinal Alignment Procedure is Not Necessarily Publicly Accessible

The nature of the presentation of video and slides is considered in determining public accessibility and qualification as a printed publication.  In Medtronic, Inc. v. Barry the Fed. Cir. determined that the Board improperly dismissed as not being a publicly-accessible publication, a video and slide presentation, which was distributed at three separate meetings.  In this case, the size and nature of the meetings and whether they are open to people interested in the subject matter of the material disclosed are important considerations.  Another factor is whether there was an expectation of confidentiality between the distributor and the recipients of the materials.  Even if there is no formal, legal obligation of confidentiality, it still may be relevant to determine whether any policies or practices associated with a particular group meeting would give rise to an expectation that disclosures would remain confidential.  In rejecting the presentations as prior art under 35 U.S.C. §102(b) the Board did not fully consider all the relevant factors, such as the first distribution to a small group of experts versus distribution to a broader audience at second and third programs.  The Board also failed to consider whether the disclosure was expected to remain confidential. 

Richard Chinn