GRÜNENTHAL GMBH v. ANTECIP BIOVENTURES II LLC, PGR2019-00026, -00027, 00028 (PTAB, July 28, 2020)

The PTAB issued decisions in a trio of post-grant reviews. One of the defenses put forward by the Patent Owner was that the asserted references did not qualify as printed publications. The analyses by the PTAB is largely the same in each decision, and therefore only PGR2019-00026 will be cited.

Patent Owner contended the Petitioner had not established that the references were publicly available. Petitioner relied upon dates set forth in the references themselves and a declaration from a technical expert who testified on availability of the references. Slip op. at 20. Patent owner contended that the dates in the references are not enough on their own to establish public availability, but did not provide any evidence that contradicted Petitioner’s evidentiary showing. Slip op. at 20-21. Ultimately, the PTAB sided with the Petitioner, and held that that a preponderance of the evidence showed that the references were prior art printed publications. Slip op. at 22.