Just in time for tomorrow’s election, an Austin patent attorney will review a recent patent case related with voter verification systems!

Among other things, VOTER VERIFIED, INC v. PREMIER ELECTIONS discusses what type of materials qualifies as a “searchable printed publication” under 35 USC §102(b).

The patent in question in this case was Reissue Patent RE40,449 (‘449) assigned to Voter Verified, where Voter Verified alleged infringement of claims 1-94.

A representative independent claim is reproduced below.

1. A self-verifying voting system comprising: one or more voting stations comprising:

(a) one or more computer programs which operate in a computer to display general voting instructions, at least one election ballot showing the candidates and issues to be voted on, and directions to the voter for operation of the system; present the election ballot for voting and input of votes by the voter; accept input of the votes from the voter; print out the election ballot according to which the voter voted with the votes of the voter printed thereon, so that the votes of the voter are readable on said election ballot by the voter and readable by a tabulating machine; record the votes in the computer; and compare the votes read by a ballot scanning machine with the votes recorded in the computer;

(b) a computer with at least one display device, at least one device to accept voting input from a voter, at least one data storage device, and sufficient memory to provide for the operation of said computer program in which said computer program runs;

(c) a printer connected to said computer for printing the election ballot according to which the voter voted;

(d) a ballot scanning means for reading the votes on the printed ballot printed according to the election ballot which the voter voted so that the votes shown on the printed ballot are compared by the computer program with the votes recorded in the computer for the voter;

(e) means for connecting said ballot scanning means to said computer; and a means for tabulating the printed ballots generated by said one or more voting stations.

In Voter Verified, the district court held that the ‘449 patent was invalid as obvious in view of several references, where one of the references was an internet publication (the “Benson article”).  The Benson article was an article for the online periodical “Risks Digest” relating to computer safety and security.

On appeal, Voter Verified challenged the district court’s invalidity argument based in part on the district court’s reliance on the Benson article as prior art.  Voter Verified argued that web based articles must be “Searchable by pertinent terms over the internet” to qualify as prior art under 35 USC §102(b). Specifically, Voter Verified argued that the Benson should be disqualified as prior art because the article was not indexed on any database that would have allowed the interested public to locate the Risk Digest website or the Benson article.

The appeal’s court held that the Benson article is a printed publication under 35 USC §102(b) because when considering whether a given reference qualifies as a prior art “printed publication,” a case by case analysis should be used to determine whether the reference was made “sufficiently accessible to the public interested in the art” before the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989).

Applying this case by case analysis, the court reasoned that because Risk Digest included more than 100 electronic voting articles, users on the site consider submissions to be public disclosures, and the website included an internal search that could have located the Benson article via a keyword search with the terms “voting” or “election,” that the article was publicly made available.


1)      It seems on that this case illustrates that any article that is posted on any searchable internet website that is relevant to a given subject may be used as prior art.

2)      With the rapidly expanding use the internet for article publishing, it will be interesting to see if public forums such as blogs/message boards could be used as pre-existing prior art. In my opinion as a patent attorney, message boards/blog posts that are created by a person of ordinary skill in the art for a given subject will probably be held to be printed publications under §102(b).

3)      As a patent attorney, I also believe that posting articles on a website/blog/message board can be used as a disclosure date to bar an inventor from obtaining a patent on the information disclosed in the internet forum in the future. Therefore, when a patent attorney determines bar dates for a client’s invention, it will be critical to determine if the invention was publicly disclosed anywhere on a searchable internet forum.

4)      By having internet publishing forums available as prior art, it will be nearly impossible to do an all-inclusive patent search. As a patent attorney, if a client requests that I complete a comprehensive/all-inclusive prior art search, I will have to tell my client that this is an impossible task. However, this case can be used to explain to my client why prior art searches are restricted to pending applications and granted patents.

By | 2012-11-05T19:56:54+00:00 November 5th, 2012|Patent Attorney Takeaways|Comments Off on AN AUSTIN PATENT ATTORNEY’S REVIEW OF VOTER VERIFIED, INC v. PREMIER ELECTIONS