For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Friday, 11 September 2009

Internet citations: the EPO gets up-to-date

A reader has kindly drawn to the IPKat's attention to a 7-page document from the European Patent Office, published in the Official Journal EPO 8/9 2009 (click here for full text): it's the EPO's notice concerning internet citations.


Right: some of the IPKat's favourite dates

The notice sets out the practice followed at the EPO when citing documents retrieved from the internet in both the European and the PCT procedures. Of particular interest, the Kat thought, was the bit which deals with establishing a publication date -- a vital issue when trying to work out, for example, whether a piece of art predates or post-dates an application:
"3.1 Establishing the publication date

Establishing a publication date has two aspects. It must be assessed separately
whether a given date is indicated correctly and whether the content in question was indeed made available to the public as of that date.

The nature of the internet can make it difficult to establish the actual date on which information was made available to the public: for instance, not all web pages mention when they were published. Also, websites are easily updated yet most do not provide any archive of previously displayed material, nor do they display records which enable members of the public – including examiners – to establish precisely what was published and when.

Neither restricting access to a limited circle of people (e.g. by password protection), nor requiring payment for access (analogous to purchasing a book or subscribing to a journal) prevent a web page from forming part of the state of the art. It is sufficient if the web page is in principle available without any bar of confidentiality.

Finally, it is theoretically possible to manipulate the date and content of an internet disclosure (as it is with traditional documents). However, in view of the sheer size and redundancy of the content available on the internet, it is considered very unlikely that an internet disclosure discovered by an examiner has been manipulated. Consequently, unless there are specific indications to the contrary, the date will be accepted as being correct".
Of even greater interest to the IPKat, being a blogger, is what the EPO says about blogs as prior art:
"3.3.3 Non-traditional publications

The internet is also used to exchange and publish information in ways which did not exist before, via, for example, Usenet discussion groups, blogs, e-mail archives of mailing lists or wiki pages.

Documents obtained from such sources also constitute prior art, although it may be more involved to establish their publication date and their reliability may vary.

Computer-generated timestamps (usually seen, for example, on blogs, Usenet or the version history available from wiki pages) can be considered as reliable publication dates. While such dates could have been generated by an imprecise computer clock this will be weighed against the fact that in general many internet services rely on accurate timing and will often stop functioning if time and date are incorrect. In the absence of indications to the contrary, the frequently used "last modified" date
can be treated as the publication date".
On the whole, this seems a sensible approach to the problem, though the Kat reminds readers that the posting date and time shown on blogs created on Blogger is -- unless amended by the author -- are those that pertain to the opening of the file on which the post is created and not the time of posting. This post bears the time 11.28am, though it is actually posted at 12.04pm.

11 comments:

David said...

This Kat would also like to point out that posts can be amended after initial publishing, leaving no obvious traces of when and how they were amended.

EQE Tools said...

This post bears the time 11.28am, though it is actually posted at 12.04pm

But it is still posted on the same day ...

Jeremy said...

To EQE: it is indeed posted on the same day. But if (as often happens) I start composing a post one day and come back to it several days later, it will automatically bear the earlier time/date unless I manually amend it to the posting time/date.

Janice Trebble said...

As a trade mark attorney, the establishment of dates can be important for my work as well. There is actually an archive of websites which can be found on the following website:

http://www.archive.org/index.php

Try playing with the WAY BACK MACHINE. Just type in the domain name and this will give you a list of dates for that website. The asterisks indicate when the site has been changed. When printed out, the date the ‘snapshot’ was taken is shown on the bottom of the page, although you will have to identify it as such when used in evidence! There is a facility to ask them to do an archive if you find that a website is not included in the existing record.

In my experience material from this source has been accepted as evidence of dating in trade mark cases.

Stephane said...

The WAY BACK MACHINE is mentioned in the OJ EPO 8/9 2009, if I recall correctly (seen this a while back, assumed the Kat didn't bother commenting... "assumption, the mother of all etc.").

Having battled with e-docs (alleged web publications, alleged emails, alleged presentations, alleged attachments, source code revisions,etc, etc.) of fairly dubious authenticity a fair few times already during patent prosecution, opposition and litigation, and delved in the arcanes of file metadata manipulation techniques during same, the 'default' position taken by the EPO about the authenticity of certain publication dates has me positively shivering.

With anticipation at the likely level of professional fees required to deal with same, or with fright at the likely amount of extra argumentation required with Googling Examiners, I'm not too sure yet. Probably a bit of both ;)

Scott Roberts said...

The EPO have pondered the acceptability of Archive.org as a source of prior art before. in T1134/06 information provided by archive.org was considered unreliable for various good reasons – and these reasons are generally applicable to all documents stored at archive.org.

Archive.org is a helpful service for finding old internet documents but the accuracy of the dates and document contents cannot reasonably be relied on.

The approach described in OJ 8/9 2009 is more like the US approach (and the UKIPO approach in HSBC) – permissive with respect to internet disclosures.

It is also reassuring to see that the standard of proof is confirmed to be "balance of probabilities" and this appears to represent a considerable (but welcomed) divergence from the reasoning in T1134/06 (where "beyond all reasonable doubt" was required (!)).

While I think we can trust examiners not to 'doctor' web disclosures before citing them, I'm not sure the same can necessarily be said of a 'motivated' person (e.g. opponent or proprietor). Is it even possible to protect against someone amending internet hosted prior art to look like it discloses (or doesn't disclose) something in particular???

Anonymous said...

The WAY BACK MACHINE contains in its legal print the express disclaimer that dating can NOT be used for legal effect.

At our office we have run into severe inconsistencies with availability and changing content on WAY BACK MACHINE results and cannot discourage strongly enough any official reliance on such vehicles for legal relevance to time.

Does the EPO provide a robust method to challenge the de facto acceptence of such unreliable (and expressly stated) non-legal binding representation of time?

Anonymous said...

the Kat reminds readers that the posting date and time shown on blogs created on Blogger is -- unless amended by the author -- are those that pertain to the opening of the file on which the post is created and not the time of posting. This post bears the time 11.28am, though it is actually posted at 12.04pm.

But the fact that at the moment of file creation the content of the post was made available to a person or group of persons (i.e. the IPKat) without any obligation of confidentiality should actually be sufficient to count as a publication (see e.g. T 482/89). The subsequent posting of the post on this website by the IPKat allows the search examiner to find the post, but is not necessary from a legal point of view.

twr57 said...

Surely not, Anon @9:36pm?

a) The file when opened is typically blank. Its content will vary until posted.

b) Even assuming that the file is in its final form when opened, and is disclosed (not just disclosable) to other IPKats, on what basis can it be said to be 'available to the public'? Surely something produced within an organisation (even with the intention of early publication) is not published until actually available outside that organisation?

Anonymous said...

The biggest problem with the "Way Back Machine" is that it archives only the HTML file. If the HTML contains a link to another file (say, a jpg picture), and that other file changes (but keeps the same path and name) after the "Way Back Machine" has archived the HTML, the "Way Back Machine" will show the "old" page with the "new" picture.

Anonymous said...

@twr57:
a) The file when opened is typically blank. Its content will vary until posted.

I was thinking of the file that is created on the IPKat's webserver after a poster has clicked on "Publish your comment". It can take a while between the time that I hit "publish" and the IPKat releases my comment for public viewing, and I believe that the time displayed is the time I hit "publish".

However, I now realise that I misread the Kat's reminder. The Kat was clearly talking about its own posts. I agree that those are only published when they are actually posted. Other IPKats reading an unfinished post will surely feel bound by secrecy as long as the post remains unfinished.

So you (and the IPKat) are fully correct.

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