Google, Wayback Machine, library stamp… proving publication

This decision (T 0013/20) of the Technical Board of Appeal (TBA) of the EPO recalls that the proof of the publication of the state of the art can be a critical point. Most patent lawyers love return machine for its ability to query web pages over the years. This is the first approach to checking Internet publications listed in the EPO’s Guidelines for Examination G-IV 7.5.4. I have also seen evidence presented to prove how the Wayback Machine works to further legitimize its use. When considering prior art publications on old-fashioned paper, it is sometimes necessary to find a library copy that includes a date stamp to prove availability on a particular date.

Luckily for the patentee in this case, there were enough discrepancies identified (such as a reference to the alleged prior art including the phrase “University of Arizona, Australia” as an interesting geographical construct) that the TBA was far from convinced that the publication could be tested. Thus, the Examining Division’s decision and its Google search were overturned. Some good research on the part of the patent holder and his representatives succeeded in bringing a patent application back to the brink of refusal.

the Examining Division retrieved D2 as an Internet citation but did not record any information as to when this citation was made public. The examining division considered that the “nominal” date of “19 August 2003”, indicated on the first page of D2 (cf. point I above), was indeed the date of publication of this document. When questioned by the applicant, the examining division searched for D2 using the Google search engine

Jacob L. Thornton