How to Prove a YouTube Video Is Prior Art: Public Accessibility Under 35 U.S.C. 102

By Kathryn "Kate" Talbot

A YouTube video can be prior art under 35 U.S.C. 102, but only if you can prove it was publicly accessible before the critical date. Existing on the internet is not the standard. You have to show that a person of ordinary skill, looking with reasonable diligence, could have found the video and watched it. An upload date may be relevant, but it does not by itself establish that an interested person could locate the video with reasonable diligence before the critical date.

I get called into patent matters to answer that one question. I have signed declarations on the public accessibility of YouTube videos that were filed with the USPTO under the name Kathryn Talbot, and I have watched otherwise strong invalidity theories fall apart because nobody could prove the video was findable when it mattered.

Here is what the proof actually takes.

What "publicly accessible" means in a patent case

The test is not whether the video was online. It is whether it was findable.

This matters most in an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB), where a petitioner can challenge patent claims only on grounds under 35 U.S.C. 102 or 103 and only on the basis of prior art consisting of patents or printed publications (35 U.S.C. 311(b)). A YouTube video has to qualify as a printed publication, and that turns on public accessibility.

The Federal Circuit has been consistent about this in cases like Blue Calypso v. Groupon and In re Lister, where the question was not the existence of the reference but whether an interested researcher could have located it using ordinary means. Indexed. Searchable. Reachable by someone who did not already know it was there.

That is why "we found it on YouTube last month" is not evidence of anything except last month. The video has to have been findable then, and you need contemporaneous records to show it.

The PTAB has made this concrete. In First Solar, Inc. v. Rovshan Sade, IPR2023-00827, Paper 13 (PTAB Nov. 16, 2023), the petitioner had a Wayback Machine capture of the reference and an affidavit from an Internet Archive record processor. The Board still denied institution. The affidavit established that the archive is searchable by URL, but the petitioner never showed how a keyword search would have produced that URL, and there was no evidence the page was indexed by a search engine. Technically accessible on the internet was not the same as publicly accessible under the statute.

That gap matters more every year. The Internet Archive passed one trillion archived web pages in October 2025. Being somewhere in a trillion pages is not the same as being findable, and that is the exact distinction the Board is drawing.

The institution-stage standard comes from Hulu, LLC v. Sound View Innovations, LLC, IPR2018-01039, Paper 29 (PTAB Dec. 20, 2019), which is precedential. The petition itself has to identify, with particularity, evidence establishing a reasonable likelihood that the reference was publicly accessible before the critical date. You do not get to fix it later.

The four things I document

This is the methodology I actually use, and it is the same whether the declaration is going into an inter partes review (IPR), a post-grant review (PGR), an ex parte reexamination, or district court.

The post date. Every video carries a publish date, and that date anchors everything else. I document it directly and then corroborate it against sources that are independent of the page itself, because what a page displays today is not proof of what it said five years ago.
Searchability. Was the video indexed by Google and by YouTube’s own search before the critical date? Would a search on the product name, the technology, or the inventor have surfaced it? This is the heart of public accessibility and it is where do-it-yourself screenshot exhibits usually fall apart.
Views and engagement over time. View counts, comments, and likes with dates attached show that real people actually found the video during the window you care about. A video sitting at eleven views with no comments and no indexing is a much harder argument than one with sustained traffic.
That the content has not changed. A channel owner can swap a title, edit a description, replace a thumbnail, or re-upload. I document the state of the video and the channel as of the relevant period and compare it to the state today, using Wayback Machine captures of the video page, the channel page, and where possible the search results themselves. Those captures are usually the single most persuasive exhibit in the whole declaration.

The fourth one gets skipped constantly and it is fatal. In AO Kaspersky Lab v. Open Text Inc., IPR2023-00895, Paper 7 (PTAB Dec. 7, 2023), the petitioner relied on an undated screenshot of a GitHub repository to establish that a whitepaper posted there was a printed publication. The Board denied institution. A repository set to public today does not tell you it was public before the critical date. A YouTube channel works the same way. Visibility settings, titles, and descriptions are all editable by the account holder, and a screenshot taken during litigation captures the current state, not the historical one.

Where these challenges fail

The failure patterns repeat, and they are all preventable.

The video was unlisted, so no amount of view data helps you. Nobody could have found it without the link.
The post date is solid but there is no indexing evidence, so you have a date and nothing connecting it to a researcher who could have located the reference.
The only exhibit is a screenshot taken during litigation, which proves what the page says now.
The channel was edited at some point and nobody checked, so the reference the petition describes is not the reference that existed before the critical date.

A declaration closes each of those gaps with records created at the time, not records created for the filing.

What goes into the declaration

The declaration lays out the video, the dates, the indexing evidence, the capture records, and the methodology, in a form the PTAB or the court can rely on. I explain what I looked at, how I looked at it, what the platform does and does not do automatically, and what the evidence supports. I also say plainly what it does not support, because the parts of a declaration that survive cross examination are the parts that did not overreach.

The proceeding changes. The proof does not.

Attorney checklist before you rely on a YouTube video

Identify the critical date for the claims at issue.
Confirm the post date, and corroborate it with sources independent of the video page.
Confirm the video was not unlisted or private during the relevant period.
Look for evidence that the video was indexed and searchable then, not just that it exists now.
Gather dated view counts and engagement from the period that matters.
Collect archived captures of the video page and the channel page, and compare them with how they look today.
Do not rely on a screenshot taken during the dispute to show what the page said before the critical date.

Frequently asked questions

Does a YouTube video count as a printed publication?

It can. Whether an online video counts as a printed publication depends on whether it was publicly accessible before the critical date. The format is not the issue. Accessibility is.

Is the upload date enough to establish prior art?

No. The upload date is where the analysis starts. You still have to show the video was findable by a person of ordinary skill exercising reasonable diligence, and that the content has not changed since.

Can an unlisted YouTube video be prior art?

It is very difficult. An unlisted video is not indexed and does not surface in search, so there is usually no path to showing an interested researcher could have located it.

Is a Wayback Machine capture enough on its own?

It is strong but rarely sufficient alone. A capture shows the page existed in a particular state on a particular date. Pair it with indexing evidence and engagement data and you have a much more complete picture.

Do I need an expert, or can counsel submit the screenshots?

Counsel can submit exhibits. What counsel cannot do is explain platform mechanics, testify to methodology, or be cross examined on it. When public accessibility is genuinely contested, that testimony is the difference.

What does a public accessibility declaration cost?

I work on a flat fee for declarations of this type, starting at $3,000, scoped to the number of videos and channels involved. Reach out and I will quote it.

About the author

Kathryn "Kate" Talbot is a social media expert witness who works on public accessibility of online video and social media evidence in patent and IP litigation. She has been retained in 20+ matters across IP, employment, personal injury, criminal defense, and insurance defense, including work with Fish & Richardson and Knobbe Martens, and her declarations on YouTube public accessibility are filed with the USPTO under the name Kathryn Talbot. She has been retained by both petitioners and patent owners. She contributes to the National Law Review and teaches CLE courses on social media evidence and AI for attorneys.

If you are working on an invalidity theory that turns on a YouTube video, or defending one, I am happy to talk through whether the evidence is there before you build the petition around it.