A weekly summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit and the opinions designated precedential or informative by the Patent Trial and Appeal Board.

VidStream LLC v. Twitter, Inc., Nos. 2019-1734, -1735 (Fed. Cir. (PTAB) Nov. 25, 2020). Opinion by Newman, joined by O’Malley and Taranto.

Twitter filed two IPR petitions challenging a VidStream patent relating to methods and systems for recording and publishing content on social media websites. Twitter asserted that the claims were obvious over the “Bradford” reference in combination with other prior art.

The copy of Bradford provided with the IPR petitions showed a copyright date of 2011, but one page bore a legend stating, “Made in the USA, Middletown, DE, 13 December 2015.” VidStream thus argued that Bradford was not prior art because it was published in 2015, long after the 2012 priority date for the challenged patent. Twitter replied by providing additional documents supporting the 2011 date, including a copy of Bradford obtained from the Library of Congress marked “Copyright © 2011” (without the December 2015 legend), a copy of Bradford’s Certificate of Registration showing a date of first publication in 2011, archived webpages showing Bradford on a publicly accessible website in 2011, and an expert declaration supporting the 2011 date.

VidStream argued to the Patent Trial and Appeal Board that Twitter’s additional evidence violated the Board’s rules because the evidence was not provided with the IPR petitions, but instead with Twitter’s reply briefs. The Board disagreed, finding that it was appropriate for Twitter to respond to VidStream’s challenge to Bradford’s publication date. The Board then ruled that Bradford qualified as prior art and that the challenged claims were unpatentable as obvious.

The Federal Circuit affirmed. The court recounted the circumstances and the competing evidence and ruled that “the evidence well supports the Board’s finding that Bradford was published and publicly accessible before the [challenged] patent’s 2012 priority date.” Therefore, Bradford qualified as prior art. VidStream did not challenge the Board’s obviousness decision if Bradford is available as a reference. Accordingly, the Federal Circuit affirmed the obviousness decision.

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