In Lynk Labs v. Samsung Electronics, the Federal Circuit determined that “a published patent application can be deemed prior art in an IPR as of the application’s filing date.” The Court affirmed the PTAB’s determination that challenged claims of U.S. Patent No. 10,687,400 (the ’400 patent), which relates to light emitting diodes (LEDs), are unpatentable for obviousness.
Samsung challenged claims of the ’400 patent as unpatentable for obviousness under 35 U.S.C. § 103, relying on references including U.S. Patent Application Publication No. 2004/0206970 (“Martin”) as prior art, and the PTAB agreed that the challenged claims were unpatentable. On appeal, Lynk Labs argued that Martin could not serve as prior art to the ’400 patent in an IPR because, although Martin was filed before the ’400 patent’s priority date, it was published (and thus became publicly accessible) only after the priority data. The Board determined that Martin was available as prior art, relying on the pre-AIA version of 35 U.S.C. § 102(e), and PTAB and non-precedential Federal Circuit caselaw applying § 102(e) prior art in IPRs.
“[Lion]” and “mammal” are different terms with different meanings, but those meanings are not completely distinct; a lion is just a specific type of mammal. Similarly, here, we think it plain enough that an “application for patent, published under [§] 122(b)” is just a specific type of “printed publication.”
On appeal, the Federal Circuit determined that 35 U.S.C. §§ 311(b) and 102(e)(1) permit IPR challenges based upon published patent applications and that the published applications are effective as prior art as of their filing dates. Lynk Labs relied on cases addressing prior art under § 102(a) or (b) to argue that Martin was not prior art. In those cases, the Court determined that the reference at issue must have been publicly accessible to qualify as a prior art printed publication. Therefore, according to Lynk Labs, because Martin became publicly accessible only as of its October 21, 2004 publication date, and because the ’400 patent’s priority date is February 25, 2004, Martin cannot be a prior art printed publication under § 311(b). The Court disagreed with this argument, noting that § 102(e)(1) specifically indicates that published patent applications are deemed prior art as of their filing date, just as patents are prior art as of their filing date under § 102(e)(2).
Lynk Labs also argued that printed publications and applications must have different meanings because § 102 refers to “printed publication[s]” in subsections (a) and (b) and “application[s] for patent, published under [§] 122(b)” in subsection (e)(1). The Court disagreed, pointing out that two different terms do not have to mean completely different things. The Court illustrated this by highlighting that the meanings of “lion” and “mammal” are not completely distinct; a lion is simply a specific type of mammal. Applied to the issue at hand, the Court determined that an application for a patent is a type of printed publication, and that a published application is effective as prior art as of its filing date. The Federal Circuit’s decision relies on a plain meaning statutory interpretation, indicating that §§ 102 and 311(b) should be interpreted according to the ordinary meaning of the language of the statute.