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Last May we described how searchers could use the Internet Archives’ Wayback Machine to find prior art on previously cached and dated versions of websites containing product information or other evidence of interest. A new product iteration of the Wayback Machine (a BETA open to the public) combined with a re-reading of our post from last year has me thinking about the subject again. One helpful user comment on our original story warned us of the questionable legality of using the Wayback Machine for prior art searching so I decided to figure out if I could see what the prevailing opinion in the legal field of today was. Combine that with a look at what’s changed for the Wayback Machine in this latest iteration and I think you’ll want to continue reading to find out about this searching tool that needs to be incorporated by your intellectual property department.
The Wayback Machine has become a go-to resource for dating and archiving website contents. As a leader in the field, “waybacking” has become a verb in the same sense that it’s completely normal to tell someone to “google” something. Despite it being accepted practice, the Internet Archive explains that legal steps that may be required in order to effectively use results from the Wayback machine, including affidavits:
Do I really need an affidavit from the Internet Archive?
No. Please consider alternatives to an affidavit from the Internet Archive. Judicial notice and stipulation to a document’s authenticity are two typical and straightforward options that might be used instead of an affidavit. Since our resources are limited, we urge you to pursue these alternatives before coming to us with authentication requests.
Additionally, a 2002 presentation to AIPLA by Wynn W. Coggins of the United States Patent and Trademark Office directly advocated for the use of the Wayback Machine in prior art searching:
V. RESOURCES BUSINESS METHODS EXAMINERS USE TO ESTABLISH WEBSITE DATES
Examiners utilize commercial databases and the Wayback Machine to help establish website posting dates in order to qualify the website as prior art.
A. COMMERCIAL DATABASES
Commercial Databases are often used by Examiners to discover dates for websites. Articles can be used to provide the date of the website, however, only information in the website that can be traced back to the date provided by the article can be relied upon.
Just because it’s become a commonplace tactic to gather evidence/prior art by using the Wayback Machine doesn’t mean that it’s accepted legal practice in every court. As our commenter on the previous story pointed out, the legality of the Wayback Machine in European Courts is on shaky ground.
In the Fordham Law Review, Deborah R. Eltgroth presents a complex and comprehensive study of the legal use of the Wayback Machine in her 2009 article (full article available for free download).
Excerpting from the abstract of her article, she points out that courts have been variable in their treatment of Wayback Machine documentation as evidence:
Intellectual property enforcers have recognized the value of the Internet Archive as a tool for tracking down infringers, but evidence from the Internet Archive has rarely been admitted at trial. This Note surveys the handful of judicial opinions and orders that comment on the admission of Internet Archive evidence and explores the conflict underlying these approaches.
The article is very well written and a must read for those interested in using this wonderful tool for prior art searching that will hold up in court (the ultimate goal)!
The BETA version of the Wayback Machine serves to improve on previous iterations in the following ways:
- Faster performance
- New toolbar on archived pages
- New look of the calendar of page captures
In the end, I believe the Wayback Machine is a useful prior art resource that needs to be considered by anyone who is involved in the intellectual property field. The application of the Wayback Machine in court has been inconsistent at best, but often times the Wayback Machine is but the start of a thread that an experienced prior art searcher can follow back to more concrete evidence such as a printed product manual that is mentioned only on previous iterations of a company website.
Have any Intellogist® Blog readers used the Wayback Machine (either the previous version or this new BETA)? What did you think of it? Was it efficient? We’d love to hear your thoughts in the comments below.
This post was contributed by Intellogist Team member Chris Jagalla. The Intellogist blog is provided for free by Intellogist’s parent company, Landon IP, a major provider of patent search, technical translation, and information services.
Filed under: Patent Search Systems, Search Tips and Tricks | Tagged: Internet Archive, Wayback machine |
The Intellogist Blog 
As May’s “helpful user” (thanks Chris, v kind) I should declare an interest. At Research Disclosure we publish searchable online disclosures of non-patent prior art for clients who want to protect their freedom to operate at a fraction of the cost of patenting. But since so many courts have declined to accept online publication as proof of date, we also have to print all our online disclosures and distribute a monthly journal to patent offices and other public libraries worldwide. With several countries, most notably China, developing their patent systems along the lines of EPO rather than the USPTO, we face having to produce a printed journal for some time to come.
You are right about the value of the Wayback Machine as a research tool. RD’s accountants devoutly hope it won’t be long before the internet can offer probative evidence and save us our monthly print and distribution costs.
Thanks for your unique insight Michael! For those of us used to doing research on the Internet from trusted sources, it can be frustrating to see these same sources ignored in any venue, including our courts.
In that respect it might be interesting to read also the EPO notice concerning internet citations (http://archive.epo.org/epo/pubs/oj009/08_09_09/08_4569.pdf) published in the Office Journal 8-9/2009, and in particular the section that refers to the wayback machine and its legal validity on using it for evidence purposes:
“… 3.4 Disclosures which have no date or
an unreliable date
Where an internet disclosure is relevant
for examination but does not give any
explicit indication of the publication date
with the text of the disclosure or if an
applicant has shown that a given date
is unreliable, the examiner may try to
obtain further evidence to establish or
confirm the publication date.
In particular, this evidence may come
from an internet archiving service, the
most prominent being the Internet
Archive accessible through the so-called
“Wayback Machine” (www.archive.org).
The fact that the Internet Archive is
incomplete does not detract from the
credibility of the data it does archive. It
is also noted that legal disclaimers
relating to the accuracy of any information
supplied are routinely used and
these disclaimers will not be taken to
reflect negatively on the websites’ actual
accuracy…”
From a more general viewpoint the Wikipedia article on the Internet Archive is not as exhaustive, but outlines also a few cases: http://en.wikipedia.org/wiki/Internet_Archive#Controversies_and_legal_disputes
Patento, thanks so much for the informative comment!
I especially love this part: “The fact that the Internet Archive is
incomplete does not detract from the
credibility of the data it does archive. It
is also noted that legal disclaimers
relating to the accuracy of any information
supplied are routinely used and
these disclaimers will not be taken to
reflect negatively on the websites’ actual
accuracy…”