In Groupon, Inc. v. Blue Calypso, LLC, CBM2013-0033, Paper 51 (December 17, 2014), the Board issued a Final Written Decision holding that claims 7-16 and 23-27 were unpatentable, but that claims 1-6 and 17-22 were not.  One of the principal pieces of prior art relied upon by Petitioner  was a technical report published by the Department of Computer Science and Electrical Engineering  of the University of Maryland, Baltimore County more than one year before the earliest priority date claimed.  However the Board found that Petition failed to establish that the technical report was a printed publication.

The Board said that the determination of whether a particular reference qualifies as a prior art printed publication “involves a case-by-case inquiry into the facts and circumstances surrounding the reference’s disclosure to members of the public,” citing In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). The key inquiry, the Board said, is whether the reference was made “sufficiently accessible to the public interested in the art” before the critical date, citing In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989).

The Board noted that Petition had not shown that the report was downloaded or otherwise disseminated, or how persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, could locate the report.  The Board found that the report was similar to uncataloged theses, citing In re Bayer, 568 F.2d 1357, 1361-62 (CCPA 1978) and In re Cronyn, 890 F.2d 1158, 1161 (Fed. Cir. 1989).  The Board found that the report was only available for “viewing and downloading” to members of the public who happened to know that it was there, and thus petitioner had not met its burden of showing that the report was publicly accessible