Is an electronic publication considered to be a “printed publication” within the meaning of 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b) provided the publication was accessible to persons concerned with the art to which the document relates?
Yes, an electronic publication is considered to be a printed publication within the meaning of 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b).
The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers Patentability.
The answer is from the 9th Edition, Revision 07.2015. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.
This question and answer comes from section 2128 of the MPEP. The following is a brief summary of section 2128.
2128 “Printed Publications” as Prior Art
This section outlines the details of printed publications as prior art. A reference is a printed publication if it is accessible to the public. It also covers electronic publications as prior art. Essentially, electronic publications are considered printed publications provided the publication was accessible to individuals concerned with the art to which the document relates. Regarding printed publications, one need not prove someone actually looked at a publication when that publication is accessible to the public through a library or patent office.