## Facts

- Carol F. Klopfenstein and John L. Brent, Jr. filed a patent application (Oct. 30, 2000) claiming methods of preparing foods containing extruded soy cotyledon fiber (SCF), asserting cholesterol-related benefits.
- The PTO rejected all claims under 35 U.S.C. § 102(b) as anticipated by a prior printed slide/poster presentation (the “Liu reference”); the Board affirmed.
- In October 1998, the inventors and a colleague presented a printed slide presentation titled “Enhancement of Cholesterol-Lowering Activity of Dietary Fibers By Extrusion Processing” at an American Association of Cereal Chemists (AACC) meeting.
- The presentation consisted of fourteen slides printed and affixed to poster boards and displayed continuously for about two and a half days at AACC.
- The same poster boards were displayed again in November 1998 for less than a day at an Agriculture Experiment Station at Kansas State University.
- The parties agreed the Liu reference disclosed every limitation later claimed in the application.
- No copies were handed out, and the poster was not catalogued or indexed in any library or database.
- Neither display included confidentiality markings or any notice prohibiting note-taking, copying, or photography.

## Issues

1. Whether the Liu poster display qualified as a “printed publication” under 35 U.S.C. § 102(b) because it was sufficiently publicly accessible more than one year before the filing date.

## Decision

- The Federal Circuit affirmed the Board’s anticipation rejection under § 102(b).
- The court held the Liu reference was a “printed publication” because, under the surrounding circumstances, it was sufficiently publicly accessible to persons of ordinary skill in the art.

## Legal Principles

- For § 102(b) printed-publication prior art, the controlling inquiry is public accessibility.
- Indexing and distribution can indicate accessibility but are not required; other circumstances may show that skilled persons had a reasonable opportunity to access the information.
- For temporarily displayed materials (e.g., posters), relevant factors include:
  - the length of time the display was exhibited,
  - the expertise of the target audience,
  - the presence or absence of expectations that the material would not be copied, and
  - the simplicity or ease with which the material could be copied.
- A continuous, multi-day poster display to a skilled audience, without copying restrictions and in a format conducive to note-taking or photography, can constitute a printed publication even if no copies were distributed and the material was never indexed.

## Conclusion

Because the poster was displayed for a substantial time to an audience of skilled researchers, without confidentiality limits and in a readily copyable format, it was publicly accessible and thus a § 102(b) printed publication that anticipated the application’s claims.


In re Klopfenstein, 380 F.3d 1345 (Fed. Cir. 2004)