MPEP 2128.02
Date Publication Is Available as a Reference

Ninth Edition of the MPEP, Revision 10.2019, Last Revised in June 2020

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2128.02    Date Publication Is Available as a Reference [R-10.2019]

I.    DATE OF ACCESSIBILITY CAN BE SHOWN THROUGH EVIDENCE OF ROUTINE BUSINESS PRACTICES

Evidence showing routine business practices can be used to establish the date on which a publication became accessible to the public. Specific evidence showing when the specific document actually became available is not always necessary. Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 7 USPQ2d 1057 (Fed. Cir.), cert. denied, 988 U.S. 892 (1988) (Court held that evidence submitted by Intel regarding undated specification sheets showing how the company usually treated such specification sheets was enough to show that the sheets were accessible by the public before the critical date.); In re Hall, 781 F.2d 897, 228 USPQ 453 (Fed. Cir. 1986) (Librarian’s affidavit establishing normal time frame and practice for indexing, cataloging and shelving doctoral theses established that the thesis in question would have been accessible by the public before the critical date.); In re Lister, 583 F.3d 1307, 1317, 92 USPQ2d 1225, 1231-32 (Fed. Cir. 2009) ("The government urges us that it is appropriate in this case to presume that the manuscript information was added to the Westlaw and Dialog databases prior to the critical date because the critical date was more than a year after the certificate of registration was granted. However, absent any evidence pertaining to the general practices of the Copyright Office, Westlaw, and Dialog, or the typical time that elapses between copyright registration, inclusion in the Copyright Office’s automated catalog, and subsequent incorporation into one of the commercial databases, any presumption along those lines would be pure speculation.").

II.    A JOURNAL ARTICLE OR OTHER PUBLICATION BECOMES AVAILABLE AS PRIOR ART ON DATE IT IS RECEIVED BY A MEMBER OF THE PUBLIC

A publication disseminated by mail is not prior art until it is received by at least one member of the public. Thus, a magazine or technical journal is effective as of the date when the first person receives it, not the date it was mailed or sent to the publisher. In re Schlittler, 234 F.2d 882, 110 USPQ 304 (CCPA 1956).