Can Patent Applications Filed Before but Published After a Patent’s Critical Date Be Used in IPR Proceedings?

In a recent inter partes review (IPR) of an alternating current light emitting diode patent, a pivotal reference was filed with the USPTO before the patent’s critical date, yet it was published afterward. Despite this, the PTAB ruled the challenged claims unpatentable based in part on that reference.

This case has garnered amicus briefs from PIPLI, HTIA, CCIA, Intel and VLSI Technology, and may redefine the scope of what constitutes prior art under § 102(a)(2).

The Federal Circuit has recently heard arguments on what is a “printed publication” in this case. Concern was expressed that allowing the filing date of a published application to be used as the prior art date would undermine the public notice function of the patent system. Listen to the arguments here: https://cafc.uscourts.gov/10-10-2024-2023-2346-lynk-labs-inc-v-samsung-electronics-co-ltd-audio-uploaded/