United States: Proving "Prior Art" At The PTAB

The new patent trials before the Patent Trial and Appeal Board ("PTAB") at the U.S. Patent Office have become a popular forum for challenging U.S. patent claims. These new trials went into effect just 3 years ago and since then almost 4000 petitions have been filed.1 And almost 7500 claims have been canceled.2 To challenge claims, a Petitioner files a petition and identifies grounds of unpatentability that can include challenges based on prior art patents or publications.3 In addition to presenting arguments and positions to show how the prior art render the challenged claims unpatentable, a Petitioner must also provide enough evidence to show that the documents relied are indeed publically available prior art.4

All evidence, including evidence tending to show public availability, must satisfy the U.S. Federal Rules of Evidence.5 For patents and patent publications this likely presents little difficulty. Though the Petitioner must prove that the patent or patent publication predates the effective filing date of the challenged patent, the date on the face of the patent or patent publication is generally sufficient.

Newspaper articles, advertisements, journal papers, conference presentations, and other non-patent literature may require a further showing. Non-patent literature documents can, and often are, relied on as prior art. Under U.S. patent law, a document, including non-patent literature is prior art if it was:

"disseminated or otherwise made accessible to persons interested and ordinarily skilled in the subject matter to which the [document] relates prior to the critical date."6

The proponent of a document must present sufficient evidence to show dissemination or availability.7 Proving a document was published and publicly available at a given time may require additional evidence.

For example, while many non-patent literature documents include a date, relying on the date alone to show a prior art date often implicates hearsay―a statement made out of court and relied upon to show the truth of the statement.8 While, hearsay is a common type of evidence, it is presumptively inadmissible in PTAB proceedings because of the common law view that such statements are untrustworthy.9 Although the dates on U.S. Patents and patent publications (as well as many non-U.S. patent documents) are technically hearsay, the dates and underlying documents, often fall into clear hearsay exceptions, such as the public records exception, where trustworthiness is not an issue.10

In contrast, however, the publication date of non-patent literature like journal articles, user manuals, corporate brochures, and other publications, which may be in the form of a date stamps,11 affidavits and declarations,12 or corroborating advertisements,13 may be more difficult. If a Petitioner cannot overcome a hearsay challenge, the evidence may be inadmissible, and the Petitioner may not be able to show that a particular reference is prior art. Such a setback could be fatal.14 And recent PTAB decisions highlight the importance of this interplay between hearsay and the Petitioner's requirement to sufficiently establish a prior art date for a reference.


The Federal Rules of Evidence apply in inter partes review and covered business method review proceedings.15 The rules, which also apply in district court, allow a party to challenge its opponent's evidence. Relevance,16 authenticity,17 and privilege18 are all grounds for challenge.

Generally, the evidentiary rules suggest that relevant evidence should be admitted.19 In contrast, hearsay evidence, including both oral and written statements, is generally not admissible, even when it is relevant to a proceeding.20 Hearsay is excluded because it is generally believed to be unreliable; when a witness is not subject to cross-examination or is not under oath, we are less inclined to trust the statement. There are, however, several hearsay exceptions21 and exclusions22 for evidence that should be admitted because it is otherwise sufficiently reliable. Many of these exceptions and exclusions are pertinent to establishing a prior art date and Patent Owners alike should be well versed in how they apply to non-patent literature documents.

There are two types of hearsay exceptions―specific exceptions that have been established over time and generally adopted. Rule 803 provides a list of specific types of statements that are admissible although the statement is otherwise hearsay. Rule 803 exceptions apply regardless of whether the declarant (whoever issued the original statement) is available.23 Rule 804 applies only when the declarant is unavailable, something the proponent of the evidence must show in order to rely on an 804 exception.24 Rule 807 sets forth a "residual exception," which allows hearsay evidence to be admitted even if it is not within a specific exception if:

  1. the statement has equivalent circumstantial guarantees of trustworthiness;
  2. it is offered as evidence of a material fact;
  3. it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
  4. admitting it will best serve the purposes of these rules and the interests of justice.

In addition, Rule 801 excludes several types of statement that would otherwise be "hearsay," including statements made by an opposing party.25

An important distinction is that an out of court statement is only hearsay if it is offered for its truth. A statement t can be admitted for other purposes (for example, to show its effect on a listener) without implicating the hearsay rules. Thus, while dates of an asserted prior art document are being submitted for their truth, the substance of a printed publication is generally not hearsay. Instead, the substance of the publication is being "offered as evidence of what it describes to an ordinary artisan, not for proving the truth of the matters addressed in the document,"26 i.e., not necessarily for the truth of what is disclosed, just that is was disclosed. For example, an advertisement showing and describing a device is admissible to show the device, as-shown, has been disclosed, whether or not the image accurately depicts the device offered for sale.27

In contrast, if a Petitioner points at a copyright date, date stamp, or other statement in the publication as evidence that the publication existed at a particular time, that statement is being relied on to show its truth and may be vulnerable to a hearsay challenge by the Patent Owner. If a challenge is successful, the date itself will not be admissible and will be excluded from the evidence the PTAB considers when assessing patentability. Without additional evidence already in the record, a Petitioner may no longer be able to sufficiently show the date of the asserted reference.

The Patent Owner's Perspective

For a Patent Owner, the prospect of excluding Petitioner's evidence should be quite appealing; it may undermine all of the challenges against the claims. And several Patent Owners have successfully raised evidentiary issues with prior art asserted by a Petitioner.

For example, in ServiceNow Inc., v. Hewlett-Packard Co.,28 the Board denied institution because Petitioner had not met its burden to prove references asserted in its petition were prior art.29 The Petitioner relied on three documents (referred to as "Collaborate References") for all of its proposed grounds of invalidity.30 The Petitioner relied on four pieces of supporting evidence to prove the Reference's publication date: an affidavit from an internet archive, expert declarations, two press releases, and the copyright dates from the face of the documents.31 The Board found that the dates supported by the affidavit were not early enough to qualify the publications as prior art.32 The declarations similarly failed to bolster Petitioner's argument—neither declarant testified to having personal knowledge of the references before the critical date, or to having knowledge that others did.33 Nor did the press releases, which provided evidence about the website author's activities and number of customers, sufficiently demonstrate the date of publication.34 As a result, Petitioner's only evidence of the references' publication date was the copyright date. As the Board noted:

"Petitioner relies on the date on the face of each exhibit and the indications of the availability of these references for download from BEA Systems, Inc. for the truth of that information, and . . . has not established that any hearsay exception or exclusion applies."35

In consequence, the dates were not admissible and the Board found that Petitioner had not:

"demonstrated a reasonable likelihood that the Collaborate References are prior-art, printed publications."36

All three grounds depended on the Collaborate References, and the Board did not institute any grounds proposed in the petition.

Similarly, in Apple v. DSS, the Board refused to institute a ground, without analysis of the substance of the document, because Petitioner "ha[d] not identified sufficient evidence on the record" to establish the document as prior art, in part because the sole evidence of publication date was a stamp identified by the Board as hearsay.37 This approach of addressing evidentiary issues at the institution stage has been criticized, and at least one Judge has rejected evidentiary decisions at institution as "premature."38 Nevertheless, Patent Owners should consider raising hearsay objections and admissibility issues as early as possible. Nonetheless, after institution evidentiary issues are part of the post grant proceeding and can provide another avenue for Patent Owners to overcome the asserted grounds of unpatentability.

Petitioner's Perspective

The Petitioner's best line of defense is the petition and its supporting exhibits. When relying on a printed publication as prior art, it is important to clearly articulate and include evidence showing how the publication is prior art. Including additional support in other documents filed with the petition and carefully choosing supporting exhibits can preserve the publication against a hearsay challenge.

Petitioners should provide at least a brief explanation of why potentially objectionable hearsay is admissible in the petition itself. In the final written decision for QSC Audio Products, LLC v. Crest Audio, Inc.,39 the Board was not persuaded by a Patent Owner's argument that statements in a pre-conference publication, which included the conference date and information for ordering additional prints on its cover, were inadmissible hearsay.40 The Patent Owner argued that the conference date was hearsay.41 The Board agreed, noting that Petitioner:

"relie[d] on the truth of the matter asserted on the face of the preprint, i.e., that it was presented . . . on the date stated on the cover page."42

But the Board still admitted the document, agreeing with the Petitioner that the paper and date fell within a hearsay exception.43 While the Petitioner in QSC made its arguments for admissibility in its response to the motion to exclude44 and at the oral hearing,45 articulating such arguments in the petition may be useful (and necessary) if the Patent Owner raises hearsay arguments in a preliminary response.

In addition, more than one hearsay exceptions may apply to any given piece of evidence and only one exception is needed to admit the evidence. Like all evidentiary issues, articulating as many exceptions as possible is advantageous.

While the Federal Rules of Evidence apply to district courts and the PTAB, several exceptions are particularly applicable to PTAB trials. For example, if a document is over 20 years old, the ancient document exception likely applies.46 Also, documents created in the regular course of business may be excepted as business records.47

Further, the Board has shown a willingness to invoke the residual exception of rule 807.48 Rule 807 allows documents to be admitted even if they are not within a hearsay exception if the document is trustworthy, probative of a material fact, and admitting the document is in the interests of justice.49For example, in Ericsson Inc. v. Intellectual Ventures I LLC,50 the Board admitted evidence of an IEEE publication's copyright date under the residual exception because "IEEE is a well-known, reputable compiler and publisher of scientific and technical publications."51 The Board found that:

"the publication date on the copyright line [was] more probative on the point for which it is offered than any other evidence that [Petitioner] could have obtained through reasonable efforts."52

In addition, it may be helpful to include testimony from a custodian or other witness to show the document was publically accessible as of a particularly date. For example, in ServiceNow Board explained that if an expert declarant has knowledge that a publication was available before the critical date that testimony may be sufficient to establish a prior art date.53 In addition, the Federal Rules allow an expert to base his opinion on hearsay. As a result, even if the expert is relying on evidence that may not be admissible because it is hearsay, the expert's opinion may be admitted.54 For example, in Phigenix, Inc. v. Immunogen, Inc.,55 the Board allowed Petitioner's rebuttal declarant to rely on the printed date56 on a reference to form an opinion that it was publically available as of the printed date. The Board noted that:

"the date of August 7, 1991, posted in [the document] need not be admissible for the testimony of [Petitioner's declarant] to be admissible."57

While the document at issue in Phigenix was used to explain the state of the art at the time of the patent rather than as a prior art ground for institution,58 Petitioners should consider including a brief statement on public availability in their expert declarations.

Additionally, corroborating evidence from a website may be admissible to prove a date of publication. In several cases, the Board has found that URL dates and other dates in website print-outs are not hearsay because they are not statements by a person but are actually made by a machine.59 For example, in EMC Corp. v. PersonalWeb Technologies, LLC,60 the Petitioner submitted a published manual that described a software program.61 The manual was posted online for download.62 Though Patent Owner challenged whether the document was a printed publication, the Board found that it was, relying in part on a computer-generated timestamp (over Patent Owner's evidentiary objection) citing case-law holding computer-generated dates are not hearsay because they are not "utter[ed] by a person."63


In PTAB proceedings, "the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence."64 Relying on printed publications, identifying the sources of evidence on which Petitioner will rely, and showing admissibility are becoming increasingly important for Petitioners when asserting and showing unpatentability.

Indeed, evidentiary objections present a potent way for Patent Owners to rebut and possibly overcome a Petitioner's case.

Petitioners and Patent Owners alike must be conscious of the effect of the hearsay rule and the Federal Rules of Evidence on their proceedings. Stay tuned as we follow this developing area of U.S. patent law.


1 As of September 30, 2015, 3973 petitions were filed. Source: http://www.uspto.gov/sites/default/files/documents/2015-09-30%20PTAB.pdf.

2 As of September 30, 2015, the U.S. Patent Office reported 7485 claims (combined for IPRs and CBMs) were found unpatentable. Source: http://www.uspto.gov/sites/default/files/documents/2015-09-30%20PTAB.pdf.

3 35 U.S.C. § 312(a)(3) (noting that the petition must identify "in writing and with particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim . . . .").

4 See, e.g., ServiceNow, Inc., v. Hewlett-Packard Co., IPR2015-00716, Paper No. 13 at 8, 15-17 (P.T.A.B. Aug. 26, 2015).

5 See, e.g., 37 C.F.R. § 42.62.

6 Orion IP, LLC v. Hyundai Motor Am., 605 F.3d 967, 974 (Fed. Cir. 2010); see also Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319, 1333 (Fed. Cir. 2009) (quoting In re Wyer, 655 F.2d 221, 226 (C.C.P.A. 1981))).

7 In re Wyer, 655 F.2d 221, 227 (C.C.P.A. 1981) (quoting Philips Elec. & Pharm. Indus. Corp. v. Thermal & Electronics Indus., Inc., 450 F.2d 1164, 1171 (3d Cir. 1971)).

8 See Fed. R. Evid. 801(c).

9 Fed. R. Evid. 802.

10 Fresenius Med. Care Holdings, Inc. v. Baxter Int'l, Inc., No. 493, 2006 WL 1330003, at *3 (N.D. Cal. May 15, 2006) ("The United States Patent and Trademark Office ("PTO") is an agency of the United States, within the Department of Commerce, and thus falls squarely within the 'public offices or agencies' requirement of Rule 803(8).").

11 In re NTP, Inc., 654 F.3d 1279, 1295 (Fed. Cir. 2011) (finding, in a proceeding not controlled by the rules of Evidence, a document was prior art because, as the Board noted, "the date stamp showed that the documents were deposited with the Library before the critical date").

12 In re Hall, 781 F.2d 897, 897 (Fed. Cir. 1986) (allowing, in a proceeding not controlled by the rules of Evidence, "Certain affidavits from Dr. Erich Will, who is the director and manager of the Loan Department of the Library of Freiburg University, [to be] relied upon by the examiner and the board in reaching their decisions").

13 In re Enhanced Sec. Research, LLC, 739 F.3d 1347, 1355 (Fed. Cir. 2014) (noting, in a proceeding not controlled by the rules of Evidence, "In view of the Manual's inscription date, the Smaha Declaration, and evidence of NetStalker advertisements published in 1995, we conclude that substantial evidence supports the Board's finding that the Manual constituted publically-available prior art . . . .").

14 See, e.g., ServiceNow, Inc. v. Hewlett-Packard Co., IPR2015-00716, Paper No. 13 at 4 (P.T.A.B. Aug. 26, 2015).

15 Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,758 (Aug. 14, 2012) (to be codified at 37 C.F.R. pt. 42).

16 See Fed. R. Evid. 402 ("Irrelevant evidence is not admissible.").

17 See Fed. R. Evid. 901 (detailing the authentication requirements).

18 See Fed. R. Evid. 501 (allowing a claim of privilege under common law).

19 Fed. R. Evid. 402; see also Fed. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.").

20 Fed. R. Evid. 802 ("Hearsay is not admissible unless any of the following provides otherwise . . . .").

21 Fed. R. Evid. 803, 804, and 807.

22 Fed. R. Evid. 801.

23 See Fed. R. Evid. 803 ("The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness . . . .").

24 See Fed. R. Evid. 804 (noting the criteria for being unavailable and providing that "[t]he following are not excluded by the rule against hearsay if the declarant is unavailable as a witness").

25 See Fed. R. Evid. 801.

26 Biomarin Pharm. Inc., v. Genzyme Therapeutic Products Ltd. P'ship, IPR2013-00537, Paper No. 79 at 25 (P.T.A.B. Feb. 23, 2015)

27 See, e.g., Freeman v. Minnesota Min. & Mfg. Co., 675 F. Supp. 877, 884 (D. Del. 1987) ("Section 102(b) requires only that the invention be described in a printed publication, not that the description be true. Therefore, the Protocol is being introduced, not for the truth of the matter asserted, i.e., that 150 lenses were made or 24 implanted, but only for the fact that it was indeed written and filed before March 15, 1975. Thus, it cannot be hearsay."); cf. In re Epstein, 32 F.3d 1559, 1565 (Fed. Cir. 1994) ("The statements are out-of-court written assertions offered by the PTO to prove the truth of the matter asserted, namely, that the various software products were 'in public use or on sale' at a time some two years before the date that the abstracts were published.").

28 IPR2015-00716, Paper No. 13 at 8, 15-17 (P.T.A.B. Aug. 26, 2015)

29 Id. at 8.

30 Id. at 2-3.

31 Id. at 2-3, 10-18.

32 Id. at 11-12.

33 Id. at 18-19.

34 Id. at 19.

35 Id. at 8.

36 Id. at 20.

37 Apple Inc. v. DSS Tech. Management, Inc., IPR2015-00373, Paper No. 8 at 10-11 (P.T.A.B. June 25, 2015) (denying institution where "[t]hat stamped date, however, would appear to be a hearsay statement to the extent that it would be offered for its truth").

38 ServiceNow, IPR2015-00716, Paper No. 13 at 4 (Crumbley, dissenting) ("I consider premature the majority's determination that certain evidence supporting public availability-the dates on the face of each Collaborate Reference, their copyright dates, and the indications of the availability of these references for download from BEA Systems, Inc.-is inadmissible hearsay. Our Rules set forth a specific procedure for making evidentiary rulings on the admissibility of evidence . . . . each of these procedures takes place after the institution of trial.").

39 IPR2014-00129, Paper No. 41 (P.T.A.B. Apr. 29, 2015)

40 Id.

41 Id. at 8.

42 Id. at 10.

43 Id. at 10-11.

44 Id., Paper No. 38 (P.T.A.B. Jan. 1, 2015).

45 Id., Paper No. 40 (P.T.A.B. Mar. 3, 2015).

46 QSC, IPR2014-00129, Paper No. 41 at 10-11 (noting that copyright date was hearsay but "qualifies as an ancient document").

47 Fed. R. Evid 803(6).

48 QSC, IPR2014-00129, Paper No. 41 at 11-12 (admitting date on conference paper where "our concern with ensuring trustworthiness and accuracy of documents admitted in evidence has been alleviated"); but see Standard Innovation Corp. v. Lelo, Inc., IPR2014-00148, Paper No. 41 at (P.T.A.B. Apr. 23, 2015) ("The residual exception to the hearsay rule is to be reserved for 'exceptional cases,' and is not 'a broad license on trial judges to admit hearsay statements that do not fall within one of the other exceptions.'" (quoting Conoco Inc. v. Dep't of Energy, 99 F.3d 387, 392 (Fed. Cir. 1996))).

49 Fed. R. Evid 807 (allowing admission if "(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and(4) admitting it will best serve the purposes of these rules and the interests of justice.").

50 IPR2014-00527, Paper 41 (P.T.A.B. May 18, 2015).

51 Id. at 10-11.

52 Id. at 11.

53 ServiceNow, IPR2014-00129, Paper No. 41 at 18.

54 EMC Corp. v. PersonalWeb Technologies, LLC, IPR2013-00082, Paper No. 83 at 60-61 (P.T.A.B. May 15, 2014) (finding "date of August 7, 1991, posted in Langer need not be admissible for the testimony of Mr. Moore to be admissible"); see also Phigenix, Inc. v. Immunogen, Inc., IPR2014-00676, Paper No. 39 at 27-28 (P.T.A.B. Oct. 27, 2015) ("In his Declaration, Mr. Jarosz provided his expert opinion by direct testimony based on facts or data of which he was made aware or that he personally observed. Because that Declaration corresponds to Mr. Jarosz's direct testimony in this trial, we are not persuaded that any part of his Declaration constitutes an "out-of-court statement" or hearsay, as Petitioner contends.").

55 IPR2014-00676, Paper No. 39 (P.T.A.B. Oct. 27, 2015)

56 Id. at 61.

57 Id.

58 Id. at 58.

59 In another set of cases, the Board has admitted evidence from the "wayback machine," an internet archiving service, albeit with little discussion of Patent Owner's hearsay objections. SDI Techs, Inc. v. Bose Corp., IPR2013-00465, Paper No. 40 at 13-15 (P.T.A.B. Nov. 7, 2014).

60 IPR2013-00086, Paper No. 66 at 32-33 (P.T.A.B. May 15, 2014) (citing supporting case law for the proposition that computer-archived documents are not statements by a person).

61 Id. at 17.

62 Id.

63 Paper No. 66 at 32-33, 41.

64 See, e.g., 35 U.S.C. § 316(e); 35 U.S.C. § 326; see also 37 C.F.R. § 42.1(d).

Originally printed in CIPA Journal. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.

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No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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