Prior Art is What an Internet Search Engine Sees

A decision holding that an a YouTube video is a printed publication under 35 U.S.C. § 102(a) is a reminder that one should always assume that content on the Internet accessible via a public search engine qualifies as prior art.  HVLPO2, LLC v. Oxygen Frog, LLC, No. 4:16cv336-MW/CAS (N.D. Fla. May 28, 2018).  In this case, the video in question would have been found in the top twenty results produced by a search of YouTube for “oxygen concentrator system.”  Citing Blue Calypso, LLC v. Groupon, Inc. (Fed. Cir. 2016), the court thought that “[s]urely, the effort involved in composing a basic search query and scrolling down the page a few times does not exceed the “reasonable diligence” that the law expects of a hypothetical prior-art subject.”

In other words, just like if you got yourself a bone with some meat on it, baby, you got a stew going, if you have Internet content that can be found by searching on a public website, then you’ve got some prior art going.

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The Supreme Court recently issued decisions in Oil States v. Greene’s Energyand SAS Institute v. Iancuaffecting inter partes review before the Patent and Trademark Office. During the July webinar, Bryan Hart of Bejin Bieneman will discuss how thes…Register