Today, Monday, Nov. 5, 2012, in Voter Verified, Inc. v. Premier Election Solutions, Inc., Nos. 2011-1553 and 2012-1017, the Federal Circuit (Lourie, Reyna, and Wallach) ruled that an online document that had not been indexed by major search engines was nevertheless a prior art “printed publication” under section 102(b).  This case provides insight on establishing online resources as prior art printed publications.

The Court held that the district court properly found a web-based prior art reference to be a 102(b) “printed publication” because it was sufficiently accessible to the relevant portion of the public interested in that field of art (computer automation) prior to the critical date.  The plaintiff had argued that there was no evidence that the database containing the article had been “indexed” (i.e., searchable via search engine) prior to the critical date, but the Court found that general search engine indexing is not a prerequisite and is merely “one factor” to be considered in the public accessibility analysis.  Here, the reference had been distributed via a subscription mailing list and made available for download via an FTP site for over a decade prior to the critical date, and had been available for four years via a website well known to those interested in computer automation – thus the reference was “publicly accessible” regardless of whether it had been indexed by commercial search engines.

The Court also found that the method claim was not directly infringed because it required the participation of multiple actors (including a voter), and the defendants did not exercise “control” over the voters (they only provided “access” and “instructions”).   However, the Court declined to consider whether the defendants might be liable for indirect infringement (in light of the recent Akamai en banc decision), finding that the plaintiff waived the issue by failing to raise it on appeal.  Finally, the Court rejected the plaintiff’s claim that a human voter could be the structure for the claimed “ballot scanning means,” citing precedent holding that humans cannot constitute a “means” under section 112, para. 6.