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IPR Institution Requires Reasonable Likelihood that Reference Is Printed Publication

In a precedential opinion, the Patent Trial and Appeal Board (PTAB) held that, for institution of an inter partes review (IPR) based on a printed publication, the petitioner must establish a reasonable likelihood that the reference is a printed publication. Hulu, LLC v. Sound View Innovations, LLC, Case No. IPR2018-01039 (PTAB Dec. 20, 2019) (Boalick, CAPJ).

Hulu petitioned for IPR, challenging a Sound View patent and asserting obviousness over a prior art reference textbook by Dougherty. Sound View filed a preliminary response challenging Hulu’s showing that Dougherty was publicly available before the filing date of the challenged patent. The PTAB denied institution, finding insufficient evidence that Dougherty was publicly accessible.

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Copycat Fight: Office Depot Isn’t ‘Licensee’ of Materials Copied for Customers

The US Court of Appeals for the Ninth Circuit affirmed a district court dismissal of a lawsuit brought by a nonprofit licensor of copyrighted math materials against a commercial duplicating company that copied the materials for licensee school districts for a fee. Great Minds v. Office Depot, Inc., Case. No. 18-55331 (9th Cir. Dec. 27, 2019) (Farris, J).

Great Minds publishes a copyrighted math curriculum called Eureka Math, which it licenses royalty-free to schools and school districts for “noncommercial” uses. The licensees are permitted to make copies of the materials for their own use. Great Minds reserves the right to collect royalties when the materials are used for “other than noncommercial” purposes.

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