What should I preserve when I find a reference?
Keep the full document or product evidence, its source, and evidence of when it became available. Sections 102 and 103 govern novelty and obviousness, including statutory dates and exceptions. A memory that something existed earlier does not replace evidence connecting the reference to the claimed invention.
Which material can support an IPR?
Section 311(b) limits an inter partes review to section 102 or 103 grounds based on patents or printed publications. A product-use or sale theory is not, by itself, one of those permitted IPR grounds. Sections 301 and 302 likewise govern the patents and printed publications used to request ex parte reexamination. Select the procedure after identifying the evidence.
Does sending the material to counsel make it privileged?
No automatic protection follows from forwarding a publication. Upjohn v. United States distinguishes confidential legal communications from underlying facts. Rule 26(b)(3) separately addresses qualifying trial-preparation material. Counsel can manage the legal analysis, but a public reference remains a public reference.