Monday, January 18, 2010

Update on Web Pages as Non-Patent Prior Art

Earlier I posted (here) about the use of web pages as prior art. Typically, the Examiner uses an Internet archive as evidence of the web page's publication date. But if the web page actually lists a publication date, the Examiner might rely on that date instead of using an Internet archive. 

What if the date mentioned on the web page is not described as a "publication date," but as a "revision date"? As I mentioned in an earlier post (here) about the use of software screen shots as prior art, updates or revisions bring up another issue: it's possible that the piece of the publication relied on by the Examiner was not available until after the revision date because the revision date itself wasn't updated. In such a case, the Internet publication may not be prior art.

For software, Ex parte Martinez (discussed here) seems to say that the software copyright date is prima facie evidence, and the burden shifts to the Applicant to prove a later date. Ex parte Petculescu discusses the same update/revision issue for Internet printed publications rather than software, and shows that the same burden-shifting applies for electronic publications.

In Petculescu, the first page of the electronically published reference said "revised July 2001," and the Examiner used this as the publication date.
Appellants contend that Microsoft is not a proper § 102(b) reference because “[t]he dates of publication of allegedly relevant sections of the OLAP Article are not definable,” and because MPEP § 2128 does not allow a reliance on the revision date as the publication date (App. Br. 9-10.) The Examiner, however, contends that a publication date (“in the form of a revision date”) has been provided and Appellants provide no contradictory evidence. (Ans. 17.) We agree with the Examiner that Appellants have provided no evidence calling the revision date into question. Appellants merely speculate that this electronic document may have been altered without updating the revision date, they do not provide any evidence that Microsoft was in fact revised after the revision date (printed on Microsoft’s front page). Accordingly, we conclude that the revision date of July 19, 2001, is the date of publication of Microsoft.
Petculescu shows that you can't expect to remove the Internet publication as prior art unless you provide evidence that the portion of the publication relied on by the Examiner was actually added later.

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