Overview
In post-grant patent validity challenges before the PTAB, does a patent application qualify as a prior art “printed publication” as of its filing date, even though it does not become publicly available until 18 months later? The Federal Circuit said yes, and Lynk Labs Inc. petitioned to the U.S. Supreme Court arguing the Federal Circuit erred in its decision. On Monday, the Supreme Court denied Lynk Labs Inc.’s petition, declining to review the Federal Circuit’s decision.
In January 2025, when hearing an appeal from an inter partes review (IPR) before the PTAB, the Federal Circuit confirmed that a patent application’s filing date should be used as its effective prior art date. Typically, a patent application takes about 18 months to publish after its initial filing date. In other words, by making the application’s effective filing date the date used for prior art purposes, a later filed patent application may be invalidated by prior art that was not publicly available.
The issue was one of statutory interpretation based on how to interpret 35 U.S.C. § 311(b)’s use of the term “printed publications.” Section 311(b) defines what is eligible prior art in an IPR, stating that “[a] petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” 35 U.S.C. § 311(b). Importantly, § 311(b) does not specifically address published patent applications, and thus, for a published patent application, the question became whether the prior art date is its publication date or its effective filing date. Lynk Labs argued that the term “printed publication,” requires the prior art document to be published and publicly available, and the absence of a further definition for patent applications as such “printed publications” distinguished 35 U.S.C. § 311(b) from the specific definitions of 35 U.S.C. § 102, which expressly defines published patent applications as prior art as of the effective filing date, not the publication date of the application.
Lynk Labs further argued that for more than a century a “printed publication” “referred to documents that were published or publicly accessible “before the critical date” as of which a patent’s validity is measured.” Accordingly, Lynk Labs’ contended that a patent application that becomes publicly available after the challenged patent’s critical date should not be a prior art printed publication within the meaning of 35 U.S.C. § 311(b).
The Federal Circuit disagreed. A published patent application is awarded a priority date of its earliest effective filing date, not its publication date, for purposes of prior art under 35 U.S.C. §§ 102(b) (pre-AIA 35 U.S.C. § 102(e)). This was a simple issue of statutory interpretation, and the court must apply the same standard for patent applications defined under 35 U.S.C. § 111.
In reviewing Lynk Labs’ petition, the Supreme Court requested replies from Samsung and the USPTO to defend the Federal Circuit’s holding. The USPTO argued that a published patent application is a type of printed publication, which is both a “printed publication” within the meaning of § 311(b) and “an application for patent, published under section 122(b),” within the meaning of pre-AIA § 102(e). The USPTO cited a longstanding intent of the patent system “to reward genuine innovation” and thus “a concept that is already described in a previously filed application is necessarily not an innovation.” Samsung, for its part, based its argument primarily on statutory construction grounds and asserted that the Federal Circuit’s decision will not lead to inconsistent results. After reviewing these arguments, the Supreme Court declined granting certiorari.
The case is Lynk Labs Inc. v. Samsung Electronics Co. Ltd. et al., case number 25-308, in the Supreme Court of the United States. The Federal Circuit case, the subject of Lynk Labs’ petition, is Lynk Labs, Inc. v. Samsung Elecs. Co., 125 F.4th 1120 (Fed. Cir. 2025).
