Can an IPR petition rely on a product, a website or a demonstration as prior art?

No. 35 U.S.C. §311(b) limits IPR grounds to §102 and §103 based on patents and printed publications. A product manual, a dated web page, a conference handout or a standards draft can qualify as a printed publication if it was publicly accessible before the priority date, and the petition has to establish that accessibility. Prior use or sale itself is available in district court, not in an IPR.

How many grounds should a petition plead?

Fewer than you think. The petition is limited to 14,000 words, and every ground has to be argued in full because the Board institutes on all grounds or none. Two to four grounds — a primary anticipation or single-reference obviousness ground, a §103 combination, and one alternative — is typical for a strong petition. Ten thin grounds signal that none of them is good.

What is a §325(d) denial and how do I avoid one?

Section 325(d) lets the Board deny institution when the same or substantially the same art or arguments were already before the Office during prosecution. The protection is knowing the file wrapper before you search: every reference the examiner cited, and every argument the applicant made to overcome it, is a place the petition should not rest its weight. The strongest petition art is in the examiner's field but outside the examiner's search.

What happens to art I found but did not use in the petition?

Under §315(e), a final written decision estops the petitioner from later asserting any ground it raised or reasonably could have raised in the IPR. Art you found and left on the shelf may be lost for the district court too. This is a reason to search thoroughly before deciding which grounds to plead, not after.

When does the petition have to be filed?

Within one year of being served with a complaint alleging infringement of the patent (§315(b)). The search should be underway well before the one-year bar approaches: a petition drafted in the last month is usually a petition drafted around whatever art was easiest to find.

Guides

How much prior art does an IPR petition need?

Michael W. Smith, former USPTO patent examiner · September 13, 2026

An IPR petition needs enough prior art to show a reasonable likelihood that at least one challenged claim is unpatentable under §102 or §103, using only patents and printed publications. In practice that means one or two primary references that each map onto every limitation of the independent claims, with pinpoint citations, plus a secondary reference where a limitation is missing — and none of it should be art the examiner already considered and overcame, or the petition invites discretionary denial under §325(d).

What the statute actually asks for

Three rules do most of the work in deciding what art a petition can use:

Patents and printed publications only (35 U.S.C. §311(b)). No products, no prior use, no on-sale activity. A non-patent document qualifies if it was publicly accessible before the priority date, and the petition carries the burden of showing that it was.
A reasonable likelihood of prevailing on at least one claim (§314(a)) for institution. This is a lower bar than the preponderance needed to win, but since the Board institutes on the whole petition or not at all, a petition is judged by its strongest ground and sunk by its weakest.
Discretion to deny where the art or arguments were already before the Office (§325(d)), or where a parallel district-court case is far enough along that the review would be duplicative. Discretionary denials have risen sharply since 2025, and art the examiner never saw is the best answer to both.

What "enough" looks like in a strong petition

Counting references is the wrong measure. The measure is coverage: for every limitation of every challenged independent claim, does a reference disclose it, with a citation a judge can check without taking your word for it? A strong petition typically rests on:

A primary reference that discloses most or all limitations of the independent claims in the same arrangement — ideally an anticipation ground under §102, which needs no motivation-to-combine argument and is the hardest ground to rebut.
A secondary reference that supplies whatever the primary lacks, with a motivation to combine that comes from the references themselves or from the art, not from the patent under attack. One secondary reference is a §103 ground; three is a sign the primary was the wrong choice.
An alternative ground — a different primary, or the same combination under a different claim construction — so the petition survives the patent owner's most likely construction argument.
Dependent-claim coverage for the dependents actually asserted, which usually adds a citation or two rather than a new reference.

That is normally three to five references across two to four grounds. Beyond that the 14,000-word limit starts cutting into the depth each ground gets, and depth is what institutes.

Why the file wrapper comes before the search

When I examined applications, my search record went into the file: the classifications searched, the databases, the queries. It is still there for every issued patent, and it is the single most useful document in an invalidity search, because it tells you two things at once — where the examiner looked, which is where not to rest a petition, and where the examiner stopped, which is where the petition art usually is. The best petition references are in the examiner's own field, one classification or one decade away from the examiner's search, and were never cited. They are plainly not "the same art" for §325(d) purposes, and they read on the claims the way the examiner would have read them. For a patent already in a multi-defendant campaign, the patents-in-suit pages list the examiner-cited references and every docket, so the §325(d) screen starts from the record rather than from a search.

The exclusion screen is the first deliverable of every search here: every reference cited during prosecution and every argument used to overcome it, so the petition can be built on what the Office has not yet seen.

Printed publications: the art that wins and the art that gets thrown out

The art that invalidates is disproportionately non-patent: conference papers, standards drafts, product manuals, dissertations, dated web pages. It is also the art most often excluded, because the petition did not prove public accessibility. A manual needs evidence of distribution; a web page needs an archive capture with a date; a thesis needs evidence it was catalogued. A reference found without its provenance is half a reference. Every non-patent citation in a report here comes with the accessibility evidence attached, because that is the difference between a ground and a footnote.

Timing

The one-year bar under §315(b) runs from service of the complaint, and the search, the expert declaration and the petition all have to fit inside it. A search commissioned at month ten produces a petition built on whatever surfaced first. Commission it at month one, decide on grounds at month three, and the petition is written around the best art rather than the earliest.

What this costs

A petition search is an invalidity search of the challenged claims — $2,500$899 for the independent claims, $5,000$1,500 for every asserted claim, flat, with references charted element-by-element in the form the petition's claim charts need them, and the exclusion screen included.