Hide comments

113 thoughts on “Wikipedia as Prior Art”

  1. 12

    Totally off topic, but I learned this morning that growth in IP value was the largest single driver of this last year’s record GDP growth. I hope that we all feel a certain warm satisfaction in knowing that we did our part for the economic recovery this year.

    link to bea.gov

      1. 12.1.1

        “The increase in nonresidential fixed investment reflected increases in equipment (led by information processing equipment) and in intellectual property products (led by software as well as research and development)…”

        1. 12.1.1.1

          Yeah I can believe it. What with zoom and everyone needing support machines therefor etc. and everyone trying to shift to working from home.

          1. 12.1.1.1.1

            Criminy, the filters are STILL active…

            Your comment is awaiting moderation.
            January 28, 2022 at 8:49 am

            But 6, anything “working from home” would need be software related, and thus (according to the usual suspects) NOT be patent eligible.

            Does this mean that the large underpinning to this (so-called) GDP growth is but a mirage?

  2. 11

    So there appears to be a point of inflection around 2012/2013, where the rate of increase of wiki prior art rejections has slowed down after that point as compared to before that point. Not sure what that is telling us about what the PTO examiners are instructed to use as cited prior art in office actions.

        1. 10.1.1.1

          Sarah being Sarah,

          Just like:
          Malcolm being Malcolm
          Greg being Greg
          marty being marty
          Ben being Ben
          Random being Random
          MaxDrei being MaxDrei
          Paul being Paul
          and
          Shifty being Shifty

          1. 10.1.1.2.1

            Also somewhat related, if you bros want something to truly blow your mind try this on for size. May just send chills up your spine as you read it. Certainly did mine. And I wouldn’t doubt if it wasn’t tru(ish) at least somewhat.

            link to en.wikipedia.org

    1. 9.1

      To my mind, the politically smart play would be for Pres. Biden to put VP Harris in the open SCOTUS slot, to free up the VP slot for a more electorally promising political heir.

      1. 9.1.1

        I could think of no WORSE position to award a prominent life time role as Supreme Court Justice than Kamala Harris.

        That this idea even sees the light of being printed is a travesty of the unthinking and seriously ideology-impaired Liberal Left vacuity.

        3. 9.1.1.3

          “the unthinking and seriously ideology-impaired Liberal Left vacuity”? Could you be any more ob nox ious?

              1. 9.1.1.3.1.1.1

                Why are you insisting on asking a question (fallaciously) that not only have I set you straight on, but have reminded you that the answer (to the non-fallacious question) has already been given to you?

                Well, we both know the answer to that question, eh?

                Hint: you are 0bsessed with me.

                2. …

                  Simple question – and as mentioned – the simple and direct answer as already been given (I do not gat paid for MY posts, but rather, I have enterprised off of your 0bsess10n with me)

                  Focus indeed.

                3. …

                  You do not get paid for your posts [lol] after all the admissions.

                  Name 1 person who believes that, Snowflake. You do not count.

                4. …

                  You are quite welcome for contributing to my enterprising – as only you can do.

                  Be that as it may, …
                  My pal Shifty, it matters not at all – and certainly not coming from you, what “anyone else believes.”

                  Further – you continue to attempt to misuse the word “admissions.”

                  Are you running out of tells?

        4. 9.1.1.4

          Conspiracy theory: The executive branch is still in competition with the judicial branch, and such an appointment would go a long way to kill SCOTUS’s legitimacy (i.e., source of power).

        5. 9.1.1.5

          How would that work? Would Biden them get to pick anyone as his VP, or is it a Conga line where Pelosi (third in line to be president) becomes VP?

          1. 9.1.1.5.1

            An open VP slot is just like any other opening in the executive branch: the president appoints with the advice and consent of the senate (see, e.g., Gerald Ford’s appointment by Pres. Nixon).

            1. 9.1.1.5.1.1

              Thanks Greg – Ford is an excellent example, as it came out only later how the Political Party dynamics were in play to put Ford into a position to ascend (unelected) into presidency when he could not even corral even backing to be his party’s representative, but wielded enough power behind the scenes.

              So who in the “D” party would be an analogue?

      2. 9.1.2

        “To my mind, the politically smart play would be for Pres. Biden to put VP Harris in the open SCOTUS slot, to free up the VP slot for a more electorally promising political heir.”

        I think that if one is willing to state that they’re solely optimizing for goal of the Democratic party winning the presidency in 2024, that the move you describe is close to objectively the best possible move.

        1. 9.1.2.1

          Right. I am not saying that Harris to SCOTUS is the best move in all possible sense of “best.” My only point in 9.1 is that Harris to SCOTUS, followed by X to VP, it is the best way to achieve victory for the democratic presidential candidate in 2024. Right now my choice for X would Buttigieg, but I could easily be persuaded that there is a better choice (e.g., John Fetterman of PA).

          1. 9.1.2.1.1

            What (serious question) has Buttigieg ever accomplished?

            Blind (truly Lemming-like) following of the Liberal Left scripts really damages the shattered remains of Greg “I Use My Real Name” DeLassus’ credibility.

          2. 9.1.2.1.2

            Filter again….

            Your comment is awaiting moderation.
            January 28, 2022 at 8:54 am

            What (serious question) has Buttigieg ever accomplished?

            Blind (truly Lemming-like) following of the Liberal Left scripts really damages the shattered remains of Greg “I Use My Real Name” DeLassus’ credibility.

      3. 9.1.3

        Greg, Biden will be too old to run. You can see his advancing cognitive decline almost on a monthly basis.

        Harris will just be pushed aside and there will be a new D candidate.

        1. 9.1.3.1

          “Harris will just be pushed aside and there will be a new D candidate.”

          I hope you’re right, but I apparently have less faith in the collective judgement of the Democratic party than you do.

      4. 9.1.4

        “the politically smart play would be for Pres. Biden to put VP Harris in the open SCOTUS slot”

        Not even sure if you’re joking or not right now.

        1. 9.1.4.1

          Totally serious. I agree with NW that Biden should not run again (in a better world, he would not have run in 2020), which means that 2024 should be an open primary race. Biden cannot hand the nomination to his chosen successor, but he can give any such person a leg up by putting him/her in the spotlight. VP Harris’ turn in the spotlight has not shown her to good electoral effect, so the wise move is to get her out, and put in someone who can make better use of that spotlight.

          How to get her out without it becoming an insult to her (an insult that she does not deserve, and which might alienate voters who like her)? By making her the historic first African-American woman on the SCOTUS, he honors her (not insults), while simultaneously clearing the way for a better 2024 candidate. It would be a deft political move. I am not saying that I expect such a move, but I would welcome it.

          1. 9.1.4.1.1

            The Power position of a life-time role on the nation’s highest court…

            … as a way of not insulting one of the most insulting VP’s of all time…?

            Talk about
            F
            A
            I
            L
            I
            N
            G
            upward in glorious style…

          2. 9.1.4.1.2

            “How to get her out without it becoming an insult to her (an insult that she does not deserve, and which might alienate voters who like her)?”

            From what I hear she can’t even run her own office without being basically a workplace bully. So, I mean, maybe she does “deserve” it? I don’t mean to be mean to her but she’s havin’ like real troubles I hear.

            In any event, all this is supposedly being done to “not insult” a lady that couldn’t get 1% of the vote in primary times by giving her extraordinary power for life in a position for which she’s probably not even half qualified for (0 judicial experience?). Ridiculous bro.

            1. 9.1.4.1.2.1

              [S]he’s probably not even half qualified…

              Whatever. I am not suggesting that Biden appoint someone obviously unqualified, like myself or Ivanka Trump. I am talking about the former attorney general of California. Whether there is someone out there who is “more qualified” than she is I cannot say. She would be fine.

          3. 9.1.4.1.3

            Greg, I understand your logic.

            But the position of Supreme Court Justice is not a bargaining chip.

            2. 9.1.4.1.3.2

              “If we get behind this awful candidate that a fraction of our voters adore, we’ll win congress and be able to advance our goals!”

              “I understand your logic. But the position of President is not a bargaining chip.”

              -Likely conversation between Republicans from 2016

    2. 9.2

      Actually, now that we are into quotas in our society, the next Scotus should be a Hispanic man.

      2. 9.2.2

        I disagree with both of you, they need to be a BLACK transbian at rock bottom bare minimum. Hopefully jewish religion to keep jewish representation on the court super high, and hopefully of hispanic lineage and with at least one muslim recent ancestor and at least 1/4 native american.

        It’s the ONLY WAY bruhs!

        Though I think personally the judge that stepped down should have waited until the next admin in a couple years :).

        1. 9.2.2.1

          The rest of your intersectionalities I can countenance, but black just won’t cut it as you already have Thomas, and there are no Asians represented.

            1. 9.2.2.1.1.1

              LOL – 6, do YOU really want to get into a “I’m the most victim” contest?

              That’s not how intersectionality works, now is it?

              BLM already has a rep – no rep for Asian.

              End of story.

    1. 8.1

      I as you know did not file a bankruptcy appeal in Massachusetts either. Now I know that Patrick put my IP in the TOOL Patent for all of them. Mann joined in and is now in their circle.

      1. 8.1.1

        From the Federal Circuit, I think Judge Kathleen O’Malley would be a fine candidate. District Court and Appellate Court experience.

          1. 8.1.1.1.1

            Pro Say – she is already lost to the CAFC, as she is retiring as of March 11, 2022.

            At 64 years, she would be bear the oldest nominee ever. Average age of nominees is 53.

            1. 8.1.1.1.1.1

              Thanks. Forgot about the retirement.

              On her being 64, though . . . much different than electing a 78 year old to be pres (ha — like that would ever happen).

              Heck. If the dems had their way, they’d probably love to vote in a healthy 25 year year young super-lib.

              Who promised to live to be 100.

              1. 8.1.1.1.1.1.1

                If the dems had their way, they’d probably love to vote in a healthy 25 year year young super-lib.

                This touches on a good point. As Jon Chait wrote today, “[t]he absurd actuarial logic of lifetime appointments incentivizes both parties to find the youngest possible nominee who can be plausibly sold to the public as having cleared the qualification bar.”

                I offer a modest suggestion as to how to fix this: instead of having nine-permanent justices on the SCOTUS, the Chief Justice should be a permanent position, and then the other 8 seats should be filled by a rotating cast of circuit judges from the various federal courts of appeal. They can take it in turns to serve for a year as judges on the supreme court, before they return to service in their respective circuit courts. In this way, no single judge will serve all that long, so there will be no need to select them on the basis of longevity.

                This will also end the tedious business of SCOTUS confirmation hearings. The only person who will ever be appointed to the SCOTUS will be the Chief, so such hearings will only arrive once every two to three decades.

                1. …

                  You would only (greatly) your expand the necessary “SCOTUS confirmation” to ALL potential “circuit riders.”

                  That this basic idea would have to be pointed out on a law blog…

    2. 8.2

      and should read: has announced his retirement.

      My understanding is that he retires at the END of the current Supreme Court term (“By law, the U.S. Supreme Court’s term begins on the first Monday in October and goes through the Sunday before the first Monday in October of the following year. The Court is, typically, in recess from late June/early July until the first Monday in October.”

      See link to uscourts.gov

      I fully support Biden being able to make his selection, and ALSO fully support the Senate (at its timing after any such selection and after Biden actually retires) to engage in ANY of its historical tactics.

      Further, the fact that the talent pool for this extremely critical position was DE FACTO limited by ISMs and will not consider the full pool of possible candidates on the merits will — no doubt — be WRONGFULLY celebrated as some type of ‘good thing.’

      Any rational person should v0m1t at such ‘reasoning.’

  6. 7

    While, as others have noted, it’s a good place for subject research and identifying trustworthy, non-modifiable sources and citations, relying on the modifiable Wikipedia as prior art — or for that matter the also modifiable Wayback Machine . . . would be no different than relying on content-modifiable patents, patent applications, or non-patent literature.

  7. 6

    Wikipedia per se as prior art — not so good. Although it is timestamped, those timestamps aren’t readily apparent and could be subject to manipulation.

    However, Wikipedia almost always cites to secondary sources. These secondary sources are better sources of prior art.

    For my money, Wikipedia’s best use is in describing what a general concept means — i.e., this is what XYZ means to those skilled in the art. Technical jargon is rarely found in a dictionary. However, I can almost always find an entry in Wikipedia that speaks to it.

    1. 6.1

      WT, that to me makes much sense, but prompts a question.

      At the USPTO, can it ever happen that an Examiner will put together a prima facie obviousness (or even novelty) attack using a citation to Wikipedia, one that is penetrating enough to shift the burden over to Applicant, to rebut the prima facie case?

      Or is this notion of “shifting the burden” simply not available to the Examiner, not a feature of everyday ex Parte prosecution at the USPTO?

      I have in mind that, at the USPTO, there is no burden on an Applicant to show that the claim and the prior art are separated by an inventive step whereas there is under the EPC and furthermore the statutory task of the Examiner at the EPO is to refuse patent applications that don’t meet the conditions of patentability.

      1. 6.1.1

        After all these years of your posting on US patent law blogs, and you are not aware of how burden shifting works in US prosecution?

        And you wonder why I call you a shill for the EP Uber Alles?

        1. 6.1.1.1

          As I do no prosecution at the USPTO, anon, I’m not ashamed to admit that I do not understand “how burden shifting works” at the USPTO.

          Let’s clarify what we mean by “burden shifting”. In every Patent Office in the world, the Office starts with the burden and issues an examination report whereupon Applicant has the burden of replying to it. Is that the shift you have in mind?

          1. 6.1.1.1.1

            That is definitely how burden shifting works in the U.S., Max. As Wt notes, however, the bar that the examiner has to clear to shift the burden to the applicant is extremely low.

            1. 6.1.1.1.1.1

              OK, Greg. But that sort of “burden” is a trivial one. How about the following hypo for a more serious burden.

              Suppose we have litigation over a pharma claim and the petitioner for revocation files experimental prima facie evidence pointing to invalidity. As patent owner, you can reply with argument that the evidence has no weight. But could it be that the evidence is so good that it is effective to “shift the burden” obliging patent owner to file in reply more persuasive experimental evidence or see the claim go down?

      2. 6.1.2

        At the USPTO, can it ever happen that an Examiner will put together a prima facie obviousness (or even novelty) attack using a citation to Wikipedia, one that is penetrating enough to shift the burden over to Applicant, to rebut the prima facie case?
        Anything can happen. I’ve seen an examiner cite art that had a publication date after our priority date.

        Or is this notion of “shifting the burden” simply not available to the Examiner, not a feature of everyday ex Parte prosecution at the USPTO?
        At the USPTO — a rejection of “This claim is invalid — yo mamma — see Wikipedia” would probably be good enough for most examiners to believe that the burden has been shifted. In practice, what is necessary for “shifting the burden” is extremely minimal at the USPTO.

        there is no burden on an Applicant to show that the claim and the prior art are separated by an inventive step
        That’s because “an inventive step” is not part of US law. But then again, you already knew that.

        1. 6.1.2.1

          Well yes, WT, of course I knew that. But nevertheless. The EPC defines “inventive” as “not obvious”. Within the EPC, “inventive” is the antonym of “obvious”, no more no less.

          So, even at the EPO, in reality an Examiner argues that the subject matter is “obvious” and Applicant replies with evidence, argument and claim amendments, that the claimed subject matter is………not obvious.

          So, given what you say, that an Examiner at the USPTO has “minimal” difficulty to dump on Applicant the burden of proving patentability, where’s the difference in practice, between the two Patent Offices, in everyday prosecution?

          As to your point about a citation having a date of publication later than the effective filing date (EFD) of the claim, does it not depend on what the reference is being cited for? If for example it is for what was common general knowledge (cgk) at the EFD why shouldn’t a trext book published a week later than the EFD be powerful evidence of what was the cgk one week earlier?

          1. 6.1.2.1.1

            Are you imputing that cgk is a US legal construct, or are you doing that EP Uber Alles thing again?

            1. 6.1.2.1.1.1

              Neither, anon. I’m just curious. When a court in England looks at a patent claim, the core preparatory task it gives itself is to “don the mantle” of, and stand in the shoes of, the notional “person skilled in the art”. In order to do that, it needs to know the cgk in the art. If there is a dispute between the adversarial parties about what is the cgk, then it is resolved by cross-examining the opposed technical experts, in open court, before the eyes and ears of the judge.

              I don’t see how any court can construe a claim or decide on its validity, without having educated itself as to the cgk. If you can see that, tell me how it’s done, please.

              1. 6.1.2.1.1.1.1

                Please pardon potential rePeat (filter)…

                ”I don’t see how any court … ”

                So you ARE imputing that, then?

          2. 6.1.2.1.2

            [W]here’s the difference in practice, between the two Patent Offices, in everyday prosecution?

            On this point, there is not much difference between the two jurisdictions.

  8. 5

    Does this article and thread do justice to the usefulness of Wikipedia as prior art, I wonder.

    I mean, the English courts (for example) when adjudicating obviousness, need to know what was the “common general knowledge” (cgk) of the notional skilled addressee in the given technical field. A single disclosure in a single published patent application doesn’t cut the mustard. Textbooks do though.

    Where does Wikipedia fit, in the task of establishing the cgk? More than a passing reference in a patent specification, perhaps but less than a leading textbook?

    I don’t know of any English case where the court relied upon Wikipedia to evidence the cgk but that’s just because of the way (x-exam of the expert witnesses) that the courts in England find the facts.

    The graph might indeed be running into an asymptotic plateau but my hunch is nevertheless that the evidential value of Wikipedia, for determining the validity of a claim, will continue to rise.

    Who says otherwise?

  10. 3

    How many times was the Wikipedia prior art challenged for not being dated prior to the earliest priority dare?

  11. 2

    I had an Examiner argue that he wouldn’t accept Wikipedia because it was “known to be unreliable.” This was for a basic mathematical concept. I cited a bunch of academic studies indicating that Wikipedia is at least as reliable as the Encyclopedia Britannica, and he finally accepted the citation.

      1. 2.1.1

        “I tell my students that wikipedia is almost certainly more reliable than their professor.”

        lol. These days even for other profs other than D himself this is likely true. Wiki is, by now, fairly well curated on big topics as opposed to how it was back in the old days. That being said, some ideology has crept in as well thanks to the curation.

        1. 2.1.1.1

          [S]ome ideology has crept in as well thanks to the curation.

          “Some” ideology?!? You don’t say…

          My experience is that Wikipedia is fairly useful for learning basic knowledge about non-controversial subjects (e.g., history of Togo, chemistry of alkenes, actor biographies, etc.). It is essentially useless for finding information about controversial topics (e.g., Pius XII, history of Israel, abortion, etc.). Opening the tracked edits on those controversial articles is a revelation about what sorts of ideas are out there.

          1. 2.1.1.1.1

            When I listed “history of Togo” in the non-controversial section, I should have specified the English language entries on the history of Togo. All histories are controversial, but often the controversy only manifests in one language. Togo is part of francophone Africa, so the Togolese argue about their history in French. It is frequently amusing to see a fairly short and dry entry on some topic in (e.g.) English, and then click on the (e.g.) Russian version of the same entry and see a veritable riot breaking out across the page.

          2. 2.1.1.1.2

            “e.g., Pius XII, history of Israel, abortion, etc”

            I mean, I just googled those and saw the wiki it seems to give decent info. I guess you’re saying that they’ve excluded the dissenting/alt views. They all seem to be fairly good articles.

            What extra do you want from those articles? They’re not supposed to be multivolume treatises that span entire rooms or buildings (as the “history of Israel” would be in depth).

            “Opening the tracked edits on those controversial articles is a revelation about what sorts of ideas are out there.”

            Exactly that’s where you can find the rest if you’re interested, until they lock em. Which I think shouldn’t be done quite in the way they’re doing it now. People should be able to have a little tab at the bottom that says “controversial-expand ad infinitum” to push if they want to.

      2. 2.1.2

        Wiki is horrible for policing trademark usage. Entries have misused trademarks in them all the time. When you go to suggest correction, the editor of the page deems your mark “generic” so your edit gets denied and the mark is continuously improperly used. I wish there was a process for removing these self-appointed editors or sending a C&D to wiki…

    2. 2.2

      Mike D,

      as noted in the discourse between 6 and Greg, one HUGE difference between Wiki and an actual encyclopedia would be the notion of editorial control and who may be held ‘responsible’ for the veracity of ANY statements alleged in any article.

      Sure, the non-controversial ones may not be as ‘flashy,’ but likewise, merely lacking the ‘flash’ is not a substitute for actual verification/validation.

  12. 1

    It is unclear just what entity is making the citation to Wikipedia.

    Thankfully, the graph appears to show an asymptotic upper limit under three percent, but I have to imagine that a large portion of that (if not all) are citations making their way into the file wrapper by way of examiners.

      2. 1.1.2

        Speaking of nothing and virtually nothing, I wonder how the Jepson claim format is doing in US filings….

    2. 1.2

      Wikipedia is great for when you have a broadly claimed invention covered by a well-researched wiki article (many science- and engineering-related Wikipedia articles are pretty fantastic, to the point of being fully enabling).

      Or a super well-known limitation tacked on to a claim but it just happens not to be mentioned in the primary reference. It may not be an important part of your invention, but we still have to map something to it.

      Or we have evidence that a particular product anticipates your claim, but we need evidence of when that product was first released. Some products – popular software, for example – have extensive Wikipedia articles well-suited for that.

      Wikipedia is also a ready source of evidence on disclosure dates for its articles, since every version of every article is timestamped and permanently available to the public.

      The graph above makes me wonder if the somewhat low citation rate for Wikipedia stems from selection bias, i.e., issued patents are less likely than abandoned applications to have had Wikipedia cited in them.

      1. 1.2.1

        Last I heard was that the time stamps are (still) easily tampered with and that these types of things remain of questionable legal veracity.

        I could be mistaken on that.

        1. 1.2.1.1

          One particular Examiner I have been dealing with for the last year does not seem to realize that webpages are not self-authenticating. I have pointed out that the Examiner’s own Notice of References Cited states that the webpage being cited is the webpage as viewed by the Examiner just a few dates before the Office Action was mailed out, and that the cited webpage is NOT an archived version from before the priority date that was downloaded from the Wayback Machine.

          1. 1.2.1.1.1

            Thanks ipguy – my recollection on veracity of Wayback Machine time stamps is only a little more clear than for Wiki.

            I do seem to recall that at least one CAFC case “accepted” the time stamp of Wayback Machine as dispositive (I do not think that THAT case was precedential though, and the reasoning in the case was suspect at best).

            1. 1.2.1.1.1.1

              MPEP 2128 (see below) discusses Wayback Machine and electronic publications. As far as the USPTO seems to be concerned, as long as the Examiner can show an archived WM timestamp, that’s enough, and the burden shifts to the applicant. One problem with Wayback Machine is clicking on a link in an archived webpage can bring you to an archived webpage with a different archive date. So, the Examiner can click on a link on an archived webpage with a timestamp from before the priority date, and that link can bring the Examiner to an archived webpage with a timestamp from after the priority date. Examiners get caught up with the excitement of finding a reference that they fail to make sure that every different webpage they are citing from that electronic reference has the same timestamp date.

              From MPEP 2128:
              II. ELECTRONIC PUBLICATIONS AS PRIOR ART
              A.Status as a “Printed Publication”
              An electronic publication, including an online database or Internet publication (e.g., discussion group, forum, digital video, and social media post), is considered to be a “printed publication” within the meaning of 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b) provided the publication was accessible to persons concerned with the art to which the document relates. See In re Wyer, 655 F.2d 221, 227, 210 USPQ 790, 795 (CCPA 1981) (“Accordingly, whether information is printed, handwritten, or on microfilm or a magnetic disc or tape, etc., the one who wishes to characterize the information, in whatever form it may be, as a ‘printed publication’ … should produce sufficient proof of its dissemination or that it has otherwise been available and accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents.’” (citations omitted).). See also Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228, 53 USPQ2d 1115, 1119 (W.D. Wash. 1999) (Pages from a website were relied on by defendants as an anticipatory reference (to no avail), however status of the reference as prior art was not challenged.); In re Epstein, 32 F.3d 1559, 31 USPQ2d 1817 (Fed. Cir. 1994) (Database printouts of abstracts which were not themselves prior art publications were properly relied as providing evidence that the software products referenced therein were “first installed” or “released” more than one year prior to applicant’s filing date.); Suffolk Tech v. AOL and Google, 752 F.3d 1358, 110 USPQ2d 2034 (Fed. Cir. 2014) (A newsgroup posting constituted prior art as it was directed to those having ordinary skill in the art and was publicly accessible because the post was sufficiently disseminated.)

              The Office policy requiring recordation of the field of search and search results (see MPEP § 719.05) weighs in favor of finding that Internet and online database references cited by the examiner are “accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents.” Wyer, 655 F.2d at 221, 210 USPQ at 790. Office copies of an electronic document must be retained if the same document may not be available for retrieval in the future. This is especially important for sources obtained from the Internet and online databases.

              B.Date of Availability
              Prior art disclosures on the Internet or on an online database are considered to be publicly available as of the date the item was publicly posted. See subsection I above. Absent evidence of the date that the disclosure was publicly posted, if the publication itself does not include a publication date (or retrieval date), it cannot be relied upon as prior art under 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) or (b). However, it may be relied upon to provide evidence regarding the state of the art. Examiners may ask the Scientific and Technical Information Center to find the earliest date of publication or posting. See MPEP § 901.06(a), subsection IV.G.

              C.Extent of Teachings Relied Upon
              An electronic publication, like any publication, may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. See MPEP § 2121.01 and § 2123. Note, however, that if an electronic document which is the abstract of a patent or printed publication is relied upon in a rejection under 35 U.S.C. 102 or 35 U.S.C. 103, only the text of the abstract (and not the underlying document) may be relied upon to support the rejection. In situations where the electronic version and the published paper version of the same or a corresponding patent or printed publication differ appreciably, each may need to be cited and relied upon as independent references based on what they disclose.

              D.Internet Usage Policy
              See MPEP § 904.02(c) for the portions of the Internet Usage Policy pertaining to Internet searching and documenting search strategies. See MPEP § 707.05(e) for the proper citation of electronic documents.

              E.Wayback Machine ®
              The Wayback Machine® is a digital library maintained by the Internet Archive (a non-profit organization) for viewing information on archived digital Internet webpages. Simply, the Wayback Machine® uses software programs, known as crawlers, to surf the Internet and automatically store copies of Web objects (Web pages, images, videos, etc.), preserving these objects as they exist at the point and time of capture. These Web objects are stored as Web captures with the capture time/date in the form of a time stamp and the URL of the original website of capture. Accordingly, the Wayback Machine® provides the ability to view and browse Internet information that may no longer be available on the original website.

              Prior art obtained via the Wayback Machine® sets forth a prima facie case that the art was publicly accessible at the date and time provided in the time stamp. The burden then shifts to the applicant should they wish to challenge the authenticity, reliability or accessibility of such information.

              F.Social Media
              Social media websites on the Internet, such as YouTubeTM, TwitterTM, FacebookTM, and public forum posts, can be a source of prior art, provided the public accessibility requirements, as laid out in subsection I are met. Thus, all information on social media is not necessarily publically accessible. Public accessibility is determined on a case-by-case basis taking into consideration factors such as, where the information is posted, privacy restrictions placed on the posting, the length of time it was posted, and whether the information is indexed for searching.

              Some social media websites are not archived by the Wayback Machine®. Therefore, examiners may have to rely on the timestamps on the social media sites to establish the public accessibility date. However, the accuracy of timestamps on social media websites may need to be scrutinized with care, as the reliability of some websites do not approach those of other types of Internet publications, such as those providing peer-reviewed material. When a document is cited in a rejection of a claim, an applicant or patent owner may challenge its public availability and/or date that it became publicly available, even where the information self-contains a publication date, by filing a proper affidavit or declaration under 37 CFR 1.132. See MPEP § 716et seq.

              1. 1.2.1.1.1.1.1

                The quick reflection that TWO dates may be in play only emphasizes the questionable veracity of ANY date.

                Further, MPEP alone has no force of law against an applicant (pretty sure that you were aware of that).

                I notice a LACK of citations in the Wayback Machine sections — which further supports my contentions.

                1. …

                  “I notice a LACK of citations in the Wayback Machine sections ”

                  Yes, I noticed that, too. The USPTO takes the position that the Wayback Machine timestamps make the pages self-authenticating, and the burden then shifts to the applicant should they wish to challenge the authenticity, reliability or accessibility of such information.
                  The January/February 2014 issue of Landslide had an excellent article by James L. Quarles III and Richard A. Crudo about use of the Wayback Machine. It cites numerous cases and has an excellent section on even the Wayback Machine is not considered to be self-authenticating and that the majority of courts required that Wayback Machine webpages be authenticated by an affidavit from a Wayback Machine representative with personal knowledge of the contents who could verify the webpages are true and accurate copies of the Wayback Machine’s records. Caveat: the article is now 8 years out of date.

          1. 1.2.1.2.1

            “But you still get paid, right? Is there a like a union?”

            I chuckle at your continuing 0bsess10n.

            I have made it abundantly clear that my enterprising (getting paid) is based on YOUR choices in YOUR posts.

            Clearly then, whether or not I note that I may be mistaken on a point as nothing to do with my enterprising, and it is most odd that you would suggest that some type of union may be involved.

            1. 1.2.1.2.1.1

              Wrong again. You brought up unions.

              How much you got paid for that nonsense? Dollars. US.

              1. 1.2.1.2.1.1.1

                How exactly am I wrong, and any “bringing up” of unions from me was in an entirely different context and entirely outside of the present conversation.

                Then again, you already knew that, given your 0bsess10n over me.

                And yet again you attempt to ploy that I get paid for my posts — even as I have set you straight, what, about a dozen times now this week?

                Hmmm – seems like that legal reference to cyber-s ta1king needs to be reposted. (by the way, out of the twelve active threads that you are stalking me on, only a single one comes even remotely close to you actually making a good faith response to one of my posts — that’s not a good look for you).

                Here it is: link to patentlyo.com

                2. …

                  Hi Shifty, I love your interest in Wikipedia (as that reminds me of one of your massive

                  F

                  A

                  I

                  L

                  S

                  That I enjoyed over the course of several months year before last.

                  As to your direct question, no, the citation provided is not from Wikipedia. But you already knew that and your question was merely the same ‘game’ of hara$$mant that you make my point with from your 0bsess10n with me.

                3. …

                  Ahh, yes. I had almost forgotten about what they now refer to as Snowflake’s cyberstalking” debacle.

                  Thanks for the memories.

Comments are closed.