The Intellectual Property Forum

Quote from: OMG IP on 02-16-11 at 09:54 pm

The way back machine/archive is a good way to provide date evidence.

Not in every jurisdiction it isn't!

Not very long ago in Boards of Appeal of the European Patent Office, 16 January 2007, Case Number: T 1134/06 - 3.2.04 [Konami Corporation], the Board was asked to consider the reliability of the Way Back Machine. After due consideration they came down firmly on the side of those who argued that it did not yet offer secure enough evidence, that the system was open to manipulation. Whilst a useful tool in turning up lines of investigation for prior art, online publication alone was not enough to establish DATE evidence.

Writing in the Journal of Intellectual Property Law & Practice, Vol. 2 No. 6, June 2007, pp. 354-355, David Rogers, Legal Member of a Board of Appeal at the EPO, commented: "Practitioners who are looking for ‘killer’ prior art would be well advised to stick with the traditional print means, unless they have a considerable body of evidence to support the reliability of an internet disclosure. The case[Konami] also sets out how a party can cast doubt on the reliability of such disclosures."

US courts as a general rule appear to accept that archived websites can provide sound evidence as to date. But if it was possible by evidence and argument to overthrow that presumption in the European courts, it may be possible for a US attorney to do so in yours.

It would certainly suit us to have online disclosure dates admitted. At Research Disclosure we publish non-patent prior art. Each disclosure is published online, date-stamped, but we still have to publish a monthly printed journal and send it to every patent office with all disclosures published IN FULL to satisfy the courts. With developing countries (including China) tending to adopt EPO procedures rather than USPTO ones, it may be that online disclosure will remain unreliable as evidence until web archive services have developed new technology.

Why is there no distance learning or complete online version of the training available?

 AFAIK you can freely copy entire passages from these patents, e.g. the disclaimers, since there is no copyright in patents, and you can of course model your own application on these.