Last year, we posted about an interesting result in a Delaware patent trial, where Judge Connolly excluded a Japanese Patent Office Utility Model Publication after the defendant failed to offer sufficient evidence of public accessibility (and actually offered some evidence of inaccessibility).
As we explained at the time, the defendant had tried to avoid IPR estoppel by arguing that it could not have found the reference in a reasonable search, but then argued that the reference was sufficiently publicly accessible to be a prior art reference. The Court rejected that argument, holding that the JPO publication was not publicly accessible and couldn't be used as prior art.
We noted this was a great opportunity for the the Federal Circuit to clarify the issue. Now, unfortunately, the Federal Circuit has issued a Rule 36 affirmance, and won't be setting forth a written opinion in the case. It's too bad, as an affirmance with an opinion would have been helpful to illuminate the exact evidentiary burden for relying on foreign patent office publications.
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