Some of the principal issues discussed were: 1. Are “reasonable likelihood” and a “” the same? The POP said that, “at the institution stage, the petition must identify, with particularity, evidence sufficient to establish a reasonable likelihood that the reference was publicly accessible….” The Petitioner and patent owner agreed that the “reasonable likelihood” standard requires the Petitioner to present a case at the institution stage. 2. Can a case satisfy the requirement for a preponderance of evidence at trial? If something less is enough at the institution stage, what, if any, additional evidence must a Petitioner present at trial? A case normally requires evidence that, unless rebutted, is sufficient to rule in favor of the party presenting it. What should be the standard at the institution stage? Should it differ from the standard during original prosecution of a patent application? During prosecution, an Examiner citing a non-patent reference rarely provides any evidence of publication beyond the reference itself; but the burden is then on the applicant. Should a Petitioner seeking IPR be required to show more? See , designated Precedential on April 7, 2020 and noting that “Examination and IPR Proceedings have Different Standards for Establishing a Printed Publication.” 3. The only evidence that the critical reference, “Dougherty,” was publicly accessible was its copyright page, which included the name of the publisher, a copyright notice, printing and reprinting dates, and an ISBN number. The Petitioner said it did not rely on a librarian’s declaration stating that a different version of the book was indexed and publicly available in the Cornell library. Are the copyright page statements hearsay? The POP said that whether the Federal Rules of Evidence apply at the institution stage “is beyond the scope of the POP question.” Do they apply at the trial stage? Do the copyright pages statements qualify for any hearsay exception? 4. Did the POP give weight to the Cornell librarian affidavit of accessibility despite the Petitioner’s statement? a. The POP said “Indicia on the face of a reference, such as printed dates and stamps, are considered as part of the totality of the evidence;” but the only “stamp” was on the Cornell version. b. Although the POP said “We do not find the [Cornell librarian] affidavit necessary to our decision,” the POP decision went on to “note that the affidavit is probative that Dougherty is the type of book that a university library would have collected and catalogued.” c. The POP cited three decisions to support its statement that “The Board has often found a reasonable likelihood that a reference is a printed publication for institution of an review when the evidence relied on provides strong indicia.” In all three, the evidence of accessibility included a declaration/expert testimony. Would you conclude you do not need either a library stamp or a declaration of public accessibility? The “totality of the evidence” in does not provide clear answers. Disclaimer: The views expressed in the article not necessarily represent those of the BPLA, or any of its members or their employers or clients.