The Software IP Report
Prior Art is What an Internet Search Engine Sees
By Charles Bieneman
06/06/2018
Categories: 35 U.S.C. § 112, 35 U.S.C. §§ 102, 103, The Software IP Report
A decision holding that an a YouTube video is a printed publication under 35 U.S.C. § 102(a) is a reminder that one should always assume that content on the Internet accessible via a public search engine qualifies as prior art. HVLPO2, LLC v. Oxygen Frog, LLC, No. 4:16cv336-MW/CAS (N.D. Fla. May 28, 2018). In this case, the video in question would have been found in the top twenty results produced by a search of YouTube for “oxygen concentrator system.” Citing Blue Calypso, LLC v. Groupon, Inc. (Fed. Cir. 2016), the court thought that “[s]urely, the effort involved in composing a basic search query and scrolling down the page a few times does not exceed the “reasonable diligence” that the law expects of a hypothetical prior-art subject.”
In other words, just like if you got yourself a bone with some meat on it, baby, you got a stew going, if you have Internet content that can be found by searching on a public website, then you’ve got some prior art going.