YouTube Video Qualifies as Printed Publication

The court denied plaintiff's motion in limine to exclude a YouTube video as a prior art reference on the ground that it was not sufficiently accessible. "Although the Federal Circuit has not explicitly ruled that YouTube videos qualify, 'the statutory phrase "printed publication" has been interpreted to give effect to ongoing advances in the technologies of data storage, retrieval, and dissemination.'. . . Plaintiff then notes that the [video] reference was uploaded on a channel which 'was not associated with a trade group or website well-known to the relevant community' and which no person would have a reason to search for. . . . A familiar user would know that you don’t need to search for a particular channel to watch the videos uploaded on it. . . . . Surely, the effort involved in composing a basic search query and scrolling down the page a few times does not exceed the 'reasonable diligence' that the law expects of a hypothetical prior art subject."

HVLPO2, LLC v. Oxygen Frog, LLC et al, 4-16-cv-00336 (FLND May 28, 2018, Order) (Walker, USDJ)