Monday, November 05, 2012

CAFC discusses "printed publications" in Voter Verified b. Premier Election

Judge Lourie affirmed MD FL in the case Voter Verified b. Premier Election

As to printed publications:

Voter Verified argues further that the Defendants “provided no evidence of any indexing on any database” that would have allowed the interested public to locate the Risks Digest website, much less the Benson article contained therein. According to Voter Verified, the Benson article therefore should have been excluded from the district court’s obviousness analysis. The Defendants respond that the Benson article qualifies as prior art because it was posted on a public website well known to those interested in the art of voting technologies—the Risks Digest—and could be retrieved from that website by searching based on subject matter.

We conclude not only that the Benson article is a “printed publication” within the meaning of § 102(b), but also that it renders claim 49 obvious under § 103. When considering whether a given reference qualifies as a prior art “printed publication,” the key inquiry is whether the reference was made “sufficiently accessible to the public interested in the art” before the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989) (quoting Con- stant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1568 (Fed. Cir. 1988)). “Whether a reference is publicly accessible is determined on a case-by-case basis based on the ‘facts and circumstances surrounding the reference’s disclosure to members of the public.’” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re Klopfen- stein, 380 F.3d 1345, 1350 (Fed. Cir. 2004)). Public acces- sibility is a legal conclusion based on underlying factual determinations. Cooper Cameron Corp. v. Kvaerner Oilfield Prods., Inc., 291 F.3d 1317, 1321 (Fed. Cir. 2002).


In re Hall, 781 F.2d 897 (Fed. Cir. 1986) (holding that a dissertation indexed in a university library catalog was a publicly accessible printed publication); In re Bayer, 568 F.2d 1357 (CCPA 1978) (holding that a thesis housed, but neither shelved nor catalogued, within a university li- brary was not publicly accessible). But indexing is not “a necessary condition for a reference to be publicly accessi- ble”; it is but one among many factors that may bear on public accessibility. Lister, 583 F.3d at 1312.

As to infringement of a method claim:

As we held in BMC and Muniauction, liability for direct infringement of a method claim requires that one party either performs every step of the claimed method or exerts “direction or control” over any such steps per- formed by others. See Muniauction, 532 F.3d at 1329 (“Where the actions of multiple parties combine to per- form every step of a claimed method, the claim is directly infringed only if one party exercises ‘control or direction’ over the entire process . . . .” (citing BMC, 498 F.3d at 1380–81)). That is far from the case before us. Notwith- standing Voter Verified’s conclusory arguments that the Defendants necessarily “control[] all of the voter’s ac- tions,” the record shows, at most, that the Defendants provide instructions on how to use their systems. But the fact that an accused infringer “controls access to its system and instructs [others] on its use is not sufficient to incur liability for direct infringement.” Id. at 1330.
The district court thus correctly concluded that Voter Verified failed to create a genuine issue of material fact regarding whether the Defendants exercised the requisite control or direction over voters to directly infringe claims 49, 85, and 93. As such, claims 50–55 and 86–92, which depend from claims 49 and 85, also were not directly infringed for at least the same reasons.5

Remaining issues:

Finally, Voter Verified has disputed no fewer than seventeen6 of the district court’s discretionary rulings on various motions, including procedural and discovery issues, asserting that “there is hardly a single ruling in this case in favor of the Defendants that is not marred by an abuse of discretion. . . . Such an abuse of discretion has now attained the dimension of bias favoring the Defen- dants or their counsel.” A claim of seventeen procedural errors by a district court seems unlikely at best; however, we take such allegations seriously. We have therefore carefully considered the record before us, and we conclude that Voter Verified’s contentions are wholly without merit.



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