"The Supreme Court is currently considering whether to grant certiorari in Lynk Labs, Inc. v. Samsung Electronics Co., No. 25-308, a case that could reshape the evidentiary foundation of inter partes review (IPR) proceedings. The question presented asks whether patent applications that became publicly accessible only after the challenged patent's critical date qualify as " prior art consisting of . . . printed publications" within the meaning of 35 U.S.C. § 311(b)."
"Under 35 U.S.C. § 102(a)(2), Martin qualifies as prior art because it was on file before Lynk's application, even though it was entirely non-public at that time. The question is whether such a reference can form the basis of an IPR challenge, given that § 311(b) limits IPR to challenges based "only on the basis of prior art consisting of patents or printed publications.""
The Supreme Court may decide whether patent applications that became public only after a challenged patent's critical date count as prior art consisting of printed publications under 35 U.S.C. §311(b). The Federal Circuit held that published patent applications can serve as prior art in IPR as of their filing date under §102(a)(2), despite being non-public at the challenged patent's filing. The Martin reference was filed in April 2003 and published in October 2004, after Lynk's February 2004 priority date. The issue raises the so-called "secret springing prior art" problem and has attracted substantial amicus support.
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