Whether patent applications that became publicly accessible only after the challenged patent's critical date are 'prior art * * * printed publications' within the meaning of 35 U.S.C. § 311(b)

In the Leahy-Smith America Invents Act, Congress created an administrative procedure for challenging patents. Through that new pr ocedure—called “inter partes review”—the U.S. Patent and Trademark Office may review and possibly cancel pa tent claims, but “only on the basis of prior art consisting of patents or printed publications .” 35 U.S.C. § 311(b) (emphasis added). Elsewhere, the Patent Act identifies “appl ication[s] for patent” as a distinct category of prior art, but omits that category as a permissible ground for in ter partes review under § 311(b). This case concerns the meaning of “printed publications.” For more than a cent ury, “[t]he statutory phrase ‘printed publication’ ” was given consistent meaning throughout the Patent Act: It referred to documents that were published or publicly accessible “ before the critical date” as of which a pa tent’s validity is measured. Constant v. Advanced Micro-Devices, Inc. , 848 F.2d 1560, 1568 (Fed. Cir. 1988) (e mphasis added); 1 William C. Robinson, The Law of Patents fo r Useful Inventions , § 325 at 447 (1890). The question presented is: Whether patent applications that became publicly accessible only after the challenged patent’s critical date are “prior art * * * printed publications” within the meaning of 35 U.S.C. § 311(b).