Friday, February 24, 2006

The coming skirmish on the IP frontier

Looks like availability of old sites on the internet archive wayback machine has thinned out a lot.

Not much left of IPT.

"A tale of conflicting models: the coming skirmish on the IP frontier
from Intellectual Property Today, 2001.

**UPDATE on Oct. 10, 2006**

from the just-n-examiner blog:

I also have seen some talk about the fact that the Internet Archive, better known as the Wayback Machine, contains a disclaimer regarding the accuracy of the contents of its database:

"You understand and agree that the Archive makes no warranty or representation regarding the accuracy, currency, completeness, reliability, or usefulness of the content in the Collections, that the Site or the Collections will meet your requirements, that access to the Collections will be uninterrupted, timely, secure, or error free, or that defects, if any, will be corrected. We make no warranty of any kind, either express or implied."

Once again, the discussion was about whether the Wayback Machine can be relied upon for prior art to be used by examiners in rejecting the claims of a patent application. And once again, I'd say that you need to consider the material for what it's worth. In the case of the Wayback Machine, however, I think I'm pretty safe in saying that the material is somewhat more reliable/credible than that from the average Wikipedia entry.

Since the Wayback Machine gathers its data through the use of automated robots, the only way (that I know of) for the data to be unreliable is either that their software is buggy (which doesn't strike me as extremely likely) or their database is getting hacked (which also strikes me as unlikely). If the web content in the Wayback Machine's database gets corrupted, then it doesn't seem to me as if it would be useful as prior art, since it likely wouldn't even load and display. If the database is getting hacked, then you've got to ask yourself why. Better yet, it seems extremely unlikely that someone would rewrite old web pages in such a way that would make it useful to an examiner, unless you can convince me that some competitor of the assignee of the application under examination is doing it. Talk about unlikely.

I just can't see a simple disclaimer as grounds for excluding the contents of the Wayback Machine as a source of prior art for examiners. If it ever does happen, though, then you can look forward to more pretty obvious Internet patents to issue, what with the speed at which Internet companies (and their web pages) evolve and/or go out of business. Without the Wayback Machine, examiners would have a much harder time trying to establish what actually existed on the Internet in the past.


If I were an examiner, I'd have no issues with citing the wayback machine. If someone challenges the prior art, chances are good that I can find the people behind the website. Without divulging anything, I can get an affidavit that the site was actually available as of the cited date. I realize that examiners don't usually go to this kind of trouble, but it's a nice threat to have. On the other side, what do you expect to accomplish by raising the challenge if the PTO will bring back verification?


Um, examiners don't have enough time to go around trying to find the author of a website and get them to file an affidavit in order to prove something was written on their website as of such and such a date. Attorneys know no examiner has the time/ability to do and thus they would take that as an extremely empty threat. Attorneys can hunt down affidavits because they have a whole legal staff helping them find what they need, examiners on the other hand are normally left in the area of "if you can't get it yourself, well, too bad."

IPBiz says: cross-reference these comments to what Quillen and Webster said in QWIII about my not citing OETD paper in my Kent-JIP paper. When I finally tracked down the European folks who "wrote" the paper, they were clueless about "when" the paper was written or appeared on the net. An affidavit? LOL. I like dreamin.


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