The Wayback Machine: The State of Dating Online Materials

[tweetmeme source=”Intellogist” only_single=false]

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.

Patent Searches from Landon IP

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.

4 Responses

  1. 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.

  2. 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…”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: