Spotlight On Upcoming Oral Arguments ' October 2023

• Published date: 03 October 2023
• Subject Matter: Intellectual Property, Patent
• Law Firm: Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
• Author: Sophia M. McClain, Ph.D., Jason Y. Zhang and Esther Lim

The following arguments will be available to the public live, both in-person and through online audio streaming. Access information will be available by 9 AM ET each day of argument at: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/.

Tuesday, October 3, 2023

Weber, Inc. v. Provisur Technologies, Inc., No. 22-1751, -1813, University of Georgia School of Law - Hatton Lovejoy Courtroom

Provisur Technologies, Inc. ("Provisur") sued Weber, Inc. ("Weber") in the Western District of Missouri alleging infringement of U.S. Patent No. 10,625,436 ("the '436 patent") and U.S. Patent No. 10,639,812 ("the '812 patent") describing high-speed food article slicing machines. In turn, Weber filed two petitions for inter partes review ("IPR") challenging the validity of the '436 patent and the '812 patent. In both petitions, Weber contended that the challenged claims would have been unpatentable as obvious over prior art including 2006 and 2010 Operating Manuals for Weber's CCS 904 Slicer ("the Manuals"). The Patent Trial and Appeal Board ("the Board") instituted review of both petitions. In its Final Written Decisions, the Board found that Weber did not establish by a preponderance of the evidence that the Manuals constituted "printed publications" under 35 U.S.C. ' 311(b). As a result, the Board held that the challenged claims of the '436 patent and the '812 patent were not unpatentable. Weber appealed.

On appeal, Weber argues that the Board erred in determining that the Manuals are not printed publications. Weber asserts that the Manuals were widely disseminated to customers and could have been accessed through multiple channels, including at tradeshows and at Weber facility open houses. Weber contends that such evidence of public accessibility has previously been affirmed by the Federal Circuit, citing precedent such as In re Enhanced Security Research, LLC, 739 F.3d 1347 (Fed. Cir. 2014). Weber also argues that the Board improperly fixated on actual customer access rather than public accessibility by failing to consider whether the Manuals were otherwise publicly accessible to interested members of the relevant public. Weber further argues that the Board incorrectly found that the Manuals' copyright notice imposes a confidentiality restriction that negates a showing of public accessibility because the notice's language would only impose theoretical restrictions on third-party transfer.

Provisur argues that the Board correctly found, based on...