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Tools:Documenting Prior Art

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LEGAL NOTICE:
PES Network, Inc. and PESWiki are not authorized to dispense legal advice. 
The information contained herein is not presented as professional counsel,
but is presented as a resource for casual consideration.

It is conceivable that there are ways of establishing a time stamp online for ideas, in such a way that the time stamp would hold up in a court of law.

Contents

Online Methods of Establishing Prior Art available to PES Network

The following resources are methods by which prior art can be proven, which are available to PES Network, Inc and those who publish with PES Network.

Archive.org

http://Archive.org crawls most websites on the internet on a regular basis and secures a snapshot copy of the site pages as they existed on a certain day.

Because this is done automatically, and archive.org is known for performing this service, the time-stamped versions of sites thus archived are most likely to hold up in a court of law.

See, for example: http://web.archive.org/web/*/http://peswiki.com/index.php/Directory:Bedini_SG

The display of content at Archive.org tends to be about 6 - 12 months behind the present date, but their harvesting of snapshots occurs at a frequency of between 4 to 24 times per year, more or less.

Google "cache"

PES Network, Inc. sites are indexed well at Google.com

After enough time (usually 1-2 weeks) has passed for Google to have indexed a new page or page change, the "cached" version URL of that page could be saved down and most likely used as admissible time-stamped evidence of prior art.

For example: Google Cached of PESWiki's StarRotor page from Sept. 5, 2006

This requires that a person conscientiously save down the url from that date.

If such archives are perpetually available, it is conceivable that Google could be asked to produce its copy of a given page around a given date, and that they could do so.

If an author conscientiously wants to put a time stamp on the publication of a particular document, then he/she should check daily for the archive to appear in Google, then save down the url of the cache of that page as soon as it first appears.

YahooGroups

Another thing that would probably be admissible for establishing prior art is something submitted to a YahooGroup discussion list because it can't be altered once posted, only deleted; and the date stamp is fixed.

For this to be considered "prior art" it needs to be publicly accessible, so the YahooGroup message archives need to be publicly accessible, and the management function of the site needs to show evidence that the page was publicly accessible at the time the page in question was posted.

However, while YahooGroups are typically accessible through search engines, they are usually niche in their scope, and would not be as likely to be considered as a strong case for "public disclosure."

Someone wanting to document the publication date of a certain idea should send it through some public YahooGroup lists and then save the urls of those posts.

PESWiki "History" tab

Publishing at PESWiki is probably not a time stamp that a court would uphold because it is database-derived, and the host technically has access to that database, and I suppose if he knew what he was doing could modify it. Otherwise, the "history" tab would be a good way to document a snapshot in time.

For example: http://peswiki.com/index.php?title=Directory:PaulL&action=history click on any of the dates, and you'll see the page as it appeared on that date and time.

A saboteur could probably devise a way to obliterate a page history, so it is a bit volatile. This can be avoided by protecting key pages from being moved or from being edited by anyone except sysops.

As long as the history of a page is in tact, it is likely to serve in a court of law as a good second witness.

The history needs to show that the "prior art" information was available over and extended period of time on the page, not just for a brief window of time.

PES Network site saves

Paul Lowrance recommended the following on Sept. 9, 2006, and will be pursued by PES Network.

Periodically burn zipped copies of peswiki.com, pesn.com, pureenergysystems.com, freeenergynews.com on CD, then submit these copies to an archival service that would put a time stamp on them and file them. The archival CD itself would not be available, but a copy of it could be made upon request, for a small fee, from the archiving institution such as a university or government library.

Fee-based Archiving Services

Principles Regarding Establishing Prior Art via the Internet

The following are tips for using the Internet to establish prior art.

On Sept. 10, 2006, PES Network, Inc. legal liaison, Nickolai Parker, provided the following information:
(Not to be construed as legal advice.)

1. Information published on the Internet should be as specific as possible

The specificity, or lack thereof, of an unfinished design is a major factor to consider when publishing on the Internet. In Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228, 1234 (W.D. Wash. 1999), defendants argued that information on a specific website, either by itself or in conjunction with additional prior art references, obviated the patent at issue. However, the court found that the prior art referenced did not anticipate the patent claim, and that there were significant differences between the patent claim and the prior art published on the Internet. Id. at 1235. Accordingly, the inventor should update the information on the Internet as he improves his design.

2. Information published on a website constitutes prior art

Patent Office Rules state “[p]rior art disclosure on the Internet or on an on-line database is considered in the same manner as other forms of written disclosure. Information disclosed on the Internet or an on-line database is considered to be publicly available as of the date the disclosure was publicly posted.‿ (Patent Office Rules & Practice § 1843.01 Prior Art for Chapter I Processing, Manual of Patent Examining Procedure, Original Eighth Ed. (Aug. 2001, Latest Rev. Oct. 2005).)

3. Include the date of publication on the website

If the patent examiner can not establish the date of publication of the information disclosed on the website, then the patent examiner will print out the website and cite the date of that print out as the date of publication. Id.

4. Patent Office Rules on prior art from electronic publications as “printed publications‿ are also of relevance

"An electronic publication, including an on-line database or Internet publication, is considered to be a printed publication . . . provided the publication was accessible to persons concerned with the art to which the document relates. . . . Internet and on-line database references cited by the [patent] examiner are accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents. [citation omitted] . . . 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 such as the Internet and online databases. . . . Prior art disclosures on the Internet or on an on-line database are considered to be publicly available as of the date the item was publicly posted. If the publication does not include a publication date (or retrieval date), it cannot be relied upon as prior art . . . although it may be relied upon to provide evidence regarding the state of the art. . . . 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. . . . 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. . . . One need not prove someone actually looked at a publication when that publication is accessible to the public . . ."

Patent Office Rules & Practice § 2128 Printed Publications as Prior Art, Manual of Patent Examining Procedure, Original Eighth Ed. (Aug. 2001, Latest Rev. Oct. 2005).

Related Documents

See also

- Legal - index page
- PESWiki home page

LEGAL NOTICE:
PES Network, Inc. and PESWiki are not authorized to dispense legal advice. 
The information contained herein is not presented as professional counsel,
but is presented as a resource for casual consideration.
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