# Proving it existed isn’t proving it was public.

Five designated decisions on non-patent prior art split three to two at the institution stage. The showings that passed explained how a skilled person would have found the document. The ones that failed showed only that it existed.

Sources checked October 16, 2026

**3 of 5** non-patent references passed the institution-stage showing. The two that failed showed only that the document existed.

## Before you read

A ResearchGate page lists a 2012 conference paper “with 45 Reads.” Is that enough to show it was a printed publication?

- Yes: it was dated and read
- No
- Only if the paper was peer reviewed

No. In In-Depth Geophysical, a dated listing, a read count and an examiner’s citation did not show a reasonable likelihood that the paper was publicly accessible.

## Forty-five reads

The petitioners in In-Depth Geophysical v. ConocoPhillips relied on a conference paper. Their evidence was a ResearchGate printout listing it as “Conference Paper · September 2012 with 45 Reads,” next to a button reading “Request full-text,” plus a European examiner’s citation of the paper in a related application. The Board denied institution. In-Depth Geophysical

## The standard at the front door

An IPR can rely on only two kinds of prior art: patents and printed publications. 35 U.S.C. § 311(b) Patents prove their own dates. A book, a thesis, a drug label or a conference paper doesn’t, so the petitioner has to show it was publicly accessible before the critical date, the cutoff the art must predate. Publicly accessible means available so that interested, skilled people exercising reasonable diligence could locate it.

In Hulu v. Sound View (2019), the Precedential Opinion Panel set the institution-stage standard. The petition “must identify, with particularity, evidence sufficient to establish a reasonable likelihood” that the reference was publicly accessible. Hulu v. Sound View, pp. 17–20

## Five references, five rulings

Here is the evidence in each designated decision. Guess before you tap.

## The pattern

The passing showings answered how someone would have found the document: a library, a catalog, a national index, a public government website. The failing ones showed that it existed.

In Hulu, the Precedential Opinion Panel looked at the record as a whole: the publisher, the series and the conventional publication marks. It did not make a copyright notice conclusive by itself. Hulu v. Sound View Rehearing was granted and the case sent back to the merits panel. Hulu’s later outcome on the merits has not been checked.

## What to do

Choose your side.

## Cuts the other way

These are institution-stage rulings from 2016 to 2019. A reasonable likelihood at institution can still fail at trial, where the petitioner must prove its case by a preponderance of the evidence. Four of the five are informative as to the cited sections only and don’t bind; only Hulu v. Sound View is precedential.

## The takeaway

Your prior-art file needs the document and the route a reader would have taken to find it.

## Related stories

- [Said twice, supported zero times.](https://postgrantproceeding.com/insights/d09-said-twice-supported-zero-times)
- [The one-year clock runs on paper, not excuses.](https://postgrantproceeding.com/insights/d12-the-one-year-clock-runs-on-paper)
- [File two petitions, and the Board keeps one.](https://postgrantproceeding.com/insights/d06-file-two-petitions-and-the-board-keeps-one)

## Sources

- S22. Hulu, LLC v. Sound View Innovations, LLC, No. IPR2018-01039, Paper 29 (P.T.A.B. December 20, 2019) (Precedential Opinion Panel; precedential). https://www.uspto.gov/sites/default/files/documents/IPR2018-01039%20Decision%20on%20POP%20Review.pdf
- S68. Sandoz Inc. v. AbbVie Biotechnology Ltd., No. IPR2018-00156, Paper 11 (P.T.A.B. June 5, 2018) (informative as to § III.C.1 only). https://www.uspto.gov/patents/ptab/precedential-informative-decisions
- S69. Seabery North America Inc. v. Lincoln Global, Inc., No. IPR2016-00840, Paper 11 (P.T.A.B. Oct. 6, 2016) (informative as to § II.A.i only). https://www.uspto.gov/patents/ptab/precedential-informative-decisions
- S21. In-Depth Geophysical, Inc. v. ConocoPhillips Company, No. IPR2019-00849, Paper 14 (P.T.A.B. September 6, 2019) (informative as to § I.E only). https://www.uspto.gov/sites/default/files/documents/In-Depth%20Geophysical%20IPR2019-00849%2C%20Paper%2014.pdf
- S70. Argentum Pharmaceuticals LLC v. Research Corp. Technologies, Inc., No. IPR2016-00204, Paper 19 (P.T.A.B. May 23, 2016) (informative as to § II.B only). https://www.uspto.gov/patents/ptab/precedential-informative-decisions
- S13. Federal patent statutes, 35 U.S.C. §§ 253(a), 303(a), 311–315, 317 and 321–325. Reproduced in MPEP Appendix L (currency date stated by the appendix: Jan. 31, 2024). https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html

## Not yet confirmed

- Hulu’s later outcome on the merits has not been checked.

Each item is marked in the story with a dashed outline. We update the story when the official record confirms or corrects it.

Precedential decisions bind the Board within their designated scope. Informative decisions show the Office’s reasoning but do not bind the Board. Court opinions are cited for what they decided; later history was checked on the date shown above.

Updated

- October 17, 2026: Each of the four informative decisions is designated only as to the section the USPTO list names. The story now gives those sections and labels outcomes outside them as non-precedential reasoning.

General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.