A Blog About Intellectual Property Litigation and the District of Delaware

Casual readers might not be aware, but we at IP/DE have a long-running feud with the Swedish publication, "boat news." They think they're so great just because they're all so tall and they write about cool boats. Well, someone finally had the nerve to tell those ruggedly handsome jerks what for.

Wahhhhhhh! No one reads my boat magazine!
AI-Generated, displayed with permission

That brave soul was Judge Andrews in yesterday's opinion in MHL Custom, Inc. v. Waydoo USA, Inc., C.A. No. 21-92 (D. Del. Sept. 6, 2023) (Mem. Op.).

The defendant, Waydoo, alleged that the asserted patent was anticipated by a paper written by a bunch of Swedish engineering students as part of a project. Unlike the famous thesis in In re Hall, 781 F.2d 897, 228 USPQ 453 (Fed. Cir. 1986), the students project wasn't indexed in a library, but was simply placed on the website for the college course. Apparently, it was downloaded by 17 people.

A dispute thus arose as to whether this paper was "publicly accessible" (and thus prior art). In support of the contention that the paper was accessible, Waydoo noted that Boat News had written an article about the project that included a link to the paper (riveting, I'm sure). Waydoo contended that this article would have led the magazines many readers to the paper.

Judge Andrews, however, noted the obvious flaw in this argument—nobody reads Boat News:

First, the Boat News article may have provided an adequate roadmap for an interested party to arrive at the Evolo Report by linking to the Evolo project page. What is lacking in Waydoo 's argument is evidence to establish that an interested party would be able to find or locate the Boat News magazine. Waydoo has not pointed to any evidence regarding whether Boat News, a Swedish boating magazine, is a publication that the "interested public" would have access to , have been aware of, or have been able to locate. Therefore, I think a reasonable jury could conclude that Waydoo did not meet its burden in showing that the Evolo Report was publicly accessible through the Boat News article. Likewise, I do not think there is such "overwhelming effect" to disturb the jury's decision.

Id. at 8 (cleaned up)

Who's not publicly accessible now Boat News?! Where's that interested public you're always crowing about at the internet news and legal blog conventions? You're worse than that shoebox in In re Cronyn, 890 F.2d 1158 (Fed. Cir. 1989).

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