Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents

by Dennis Crouch

The Supreme Court is currently considering whether to grant certiorari in Lynk Labs, Inc. v. Samsung Electronics Co., No. 25-308, a case that could reshape the evidentiary foundation of inter partes review (IPR) proceedings. The question presented asks whether patent applications that became publicly accessible only after the challenged patent's critical date qualify as "prior art consisting of . . . printed publications" within the meaning of 35 U.S.C. § 311(b). In its January 2025 decision, the Federal Circuit held that published patent applications may serve as prior art in IPR proceedings as of their filing date under § 102(a)(2), even if those applications were confidential at the time the challenged patent was filed. Lynk Labs, Inc. v. Samsung Electronics Co., 125 F.4th 1120 (Fed. Cir. 2025). The petition has attracted substantial amicus support. I had begun drafting my own amicus brief in support of the petition but did not complete that project. Instead, I offer some of my thoughts here.

At its core, the case concerns what I have called the "secret springing prior art" problem: a reference that was secretly on file at the USPTO at the time a patent application was filed, but which only becomes publicly accessible when it is later published. See Dennis Crouch, Secret Springing Prior Art and Inter Partes Review, Patently-O (Oct. 2024). The Martin reference at issue in Lynk Labs was filed in April 2003 but did not publish until October 2004, well after Lynk's February 2004 priority date. Under 35 U.S.C. § 102(a)(2), Martin qualifies as prior art because it was on file before Lynk's application, even though it was entirely non-public at that time. The question is whether such a reference can form the basis of an IPR challenge, given that § 311(b) limits IPR to challenges based "only on the basis of prior art consisting of patents or printed publications." The Federal Circuit held that it can, reasoning that "printed publication" is "temporally agnostic" and that the prior art status of a reference is determined separately from its status as a printed publication. I find that reading difficult see - particularly with our long tradition that a printed publication is defined by its date of publication.

The Federal Circuit's error lies in conflating two distinct inquiries: whether a reference qualifies as prior art under § 102(a)(2) and whether it qualifies as a printed publication under § 311(b). The result is that abandoned, unexamined applications are backdated to destroy issued patents, privileging the least-vetted references over genuine publications that were actually accessible to the public before the critical date.