Patent Lawyer Blog
The PTAB’s decision provides important guidance on when online product listings can qualify as prior art, particularly focusing on the challenges of establishing publication dates for Amazon listings.
Key Legal Standard
The Board emphasized that for an inter partes review, petitioners can only challenge patentability “on the basis of prior art consisting of patents or printed publications.” The key test is whether the reference was “publicly accessible.” As the decision explains, “A reference will be considered publicly accessible if it was disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence can locate it.”
Amazon Listings as Evidence
The petitioner, Vectair Systems, attempted to use Amazon product listings for a urinal screen showing a “Date First Available” of May 10, 2013 as evidence of prior publication, preceding the challenged patent’s purported priority of November 5, 2014. However, the Board rejected this approach, citing previous decisions that explain why such dates are insufficient:
“[T]he date that a product was listed as first available on a website . . . is not sufficient evidence that the content of the listing, including the photographs depicted therein, were published at that time.”
The Board explained the practical reasoning behind this position:
- Product listings may be updated over time
- Photographs of products may change
- A “first available” date doesn’t prove when specific content appeared
Need for Corroborating Evidence
The decision emphasizes that petitioners need “additional corroborating evidence that the listing itself, or any photograph depicted therein, has not changed over time.” In this case, the petitioner failed to provide such corroboration.
Contradictory Evidence
The patent owner, Fresh Products, successfully challenged the prior art status by providing testimony from their Chief Operating Officer, who testified that:
- “Fresh Products did not create the Amazon Listing”
- “Fresh Products does not control the content of the Amazon Listings”
- The product “was first publicly disclosed… at the ISSA Interclean North America trade show in November of 2014”
- Production units weren’t manufactured until March 2015
Lessons for Practitioners
This case provides valuable guidance for practitioners on the limitations of using online marketplace listings as prior art and the importance of corroborating evidence to establish publication dates. It also demonstrates how patent owners can effectively challenge the prior art status of such listings through testimony about the actual product development and release timeline.
The decision aligns with a growing body of PTAB precedent that requires rigorous proof of public accessibility for online content, particularly from dynamic websites where content can change over time.
Administrative Patent Judge Sheridan K. Snedden authored the decision, joined by Judges Jeffrey N. Fredman and Richard H. Marschall. Vectair Systems Inc. v. Fresh Products, Inc., Case No. IPR2024-00824, Paper 9 (PTAB Nov. 12, 2024).
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Greg Cordrey at 949.623.7236 or GCordrey@jmbm.com.