Before Newman, O'Malley, and
Summary: Evidence of a prior art reference's publication date submitted after an IPR petition may be appropriately considered by the Board if the evidence is a legitimate reply to a challenge by the patent owner.
Twitter requested two Inter Partes Reviews of a patent assigned to
Twitter's petitions included a copy of Bradford's copyright page that contained the following legend: "Copyright © 2011". In response, VidStream argued that Bradford was not prior art because a page in Bradford indicated it was published on
The Federal Circuit affirmed the Board's decision. The Federal Circuit explained that both parties were permitted an opportunity to provide evidence concerning the reference date of the Bradford book, that VidStream was provided with an opportunity to respond to Twitter's evidence submitted in its replies, and that the collective evidence submitted well supports the Board's finding that Bradford was published and publicly available before VidStream's 2012 patent priority date.
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