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I'm trying to determine whether there is evidence that definitively confirms that a YouTube video can be submitted as prior art.

If there is an example of one being used as the grounds for rejecting an application, that would obviously work, as would a statement or copy from the USPTO, but I wasn't able to find anything on their site that would specifically apply.

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Just to clarify, you're referring to the content of a specific YouTube video as prior art, and not YouTube videos in the abstract? –  g33kz0r Sep 5 '12 at 19:02
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@g33kz0r - correct. –  SamtheBrand Sep 5 '12 at 23:01
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6 Answers

up vote 13 down vote accepted

Yes, you can submit a YouTube Video as prior art as long as the YouTube video is publicly available. YouTube videos usually have the publication date under the video, such as "Uploaded by X on Oct 17, 2011". If you provide a hard copy of the video itself, it be hard to prove that the video was public or its publication date, especially if the public version of the video gets removed at a later time. I would recommend making a "Print Screen" image of each second in the video that is considered prior art. Make sure that the "Print Screen" image shows the URL of the video as well as its publication date on YouTube. Then convert each "Print Screen" image into a PDF Document. Combine all the PDF pages into a single document and submit this to the USPTO.

I'm a patent searcher and I have done this before.

I hope this helps! :)

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I agree that removal of videos may be an issue. –  VenomFangs Sep 20 '12 at 17:13
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As others have pointed out, a youtube video could be prior art, in the sense that a video recording is eligible subject matter.

Prosecution is sometimes ex parte, as in the case of a non-published patent application. This means that the office actions (rejections etc) from the USPTO to the applicant are sent only to the applicant, and not made public. So, the only way the world would know that an application had been rejected under obviousness or novelty grounds due to prior art, is if the applicant disclosed that fact, the patent issued (at which time the prosecution record would become public), or if this fact was somehow forced out in subsequent litigation. If an application is abandoned or denied, the prosecution record of a non-published patent is not published.

However, as the commenters pointed out, most patent applications are public, so this might not matter. If the application is public, then you might be able to find evidence of a YouTube-based rejection.

On the other hand, if the application is private, then the only way someone would be able to "definitively confirm" that a YouTube video was prior art would be if their own application was rejected on those grounds, and in most cases, they wouldn't/couldn't tell you the specifics about that without breaching confidentiality.

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Or, like you said, if it came out in a court filing or other reliable source, that would be pretty definitive. –  Matthew Flaschen Sep 5 '12 at 19:22
    
Why would it be a breach of confidentiality if the applicant disclosed her own communications with the PTO? –  bib Sep 6 '12 at 17:27
    
@bib "In most cases" => not all cases. –  g33kz0r Sep 6 '12 at 20:09
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"The office actions (rejections etc) from the USPTO to the applicant are sent only to the applicant, and not made public. So, the only way the world would know that an application had been rejected under obviousness or novelty grounds due to prior art, is if the applicant disclosed that fact." This is patently false; patent prosecution histories are matters of public record, barring special circumstances (e.g., national security NSA-type stuff): portal.uspto.gov/external/portal/pair –  user1402242 Sep 21 '12 at 19:11
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user1402242: that only applies to issued patents and published applications. Edited –  g33kz0r Sep 21 '12 at 19:26
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I am not aware of a definitive answer to your question either in the statutes or in case law, but I can set out likely parameters for making such a determination. The following excerpt from 35 USC section 102 most directly addresses the issues relevant to your question:

A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or ...

There are other limiting factors that are pertinent to your question. The key question, already addressed earlier, is whether the YouTube video can be proven to be prior to the date of the claimed invention. I don't know enough about the innards of the YouTube system to know whether definitive proof is available, though I suspect it is - provided that the Google folks will cooperate in demonstrating the actual publication date of the video.

There is plenty of room for argument from the other side as to whether posting on YouTube is "publication" for purposes of the statute. Also, given the nature of the medium, it may be difficult to establish that the video is "truthy." Remember the videos showing fantastic basketball shots and people launched through hoops? It is also possible to misinterpret what a video actually represents, for example whether it shows an actual working process or a mockup such as stop motion animation.

It comes down to proof - convincing a court as to the factual nature of the video and the date of its publication.

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Proof may be available even if Google won't "cooperate". That's what the federal subpoena power is for. –  g33kz0r Sep 6 '12 at 14:06
    
If an inventor created a film teaching exactly how her invention worked, wouldn't that be a publication? –  bib Sep 6 '12 at 17:29
    
Existence is not publication. How does the inventor prove the date on which the film was created? One way would be to publish by registering the film for copyright. The further problem with any video or photographic evidence is the ability manufacture such materials as mentioned in the answer above. –  user96 Sep 6 '12 at 21:04
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The video doesn't have to be copyrighted to be considered a publication. Also, finding out the date when the video was created is irrelevant. What matters is the date when the video was made publicly available. As long as the video has a publication date, it is considered prior art. All YouTube videos show the date when they were uploaded. This date is the publication date. –  Patentico Sep 20 '12 at 17:28
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Well, all evidences might be taken into consideration. To be a prior art, evidence must be public and need to have a date and comprise one or more subject matter, which is claimed in new invention. But, like other evidences in the internet, video can be deleted from youtube and there will be a problem to prove that 1 year ago youtube (or any other public web-site) contained a specific video. If you want to make a reference in a patent application - it's better to provide a "hard-copy" of video to the USPTO on the CD or DVD.

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An interesting sub-question is whether you can use a YouTube downloader as part of putting it on DVD. Normally, that's a TOS and possibly copyright violation. I wonder if the courts will enforce this if it was a public video, and it's only being used to submit to USPTO as prior art. I guess this is partly a copyright (fair use) and contract question. –  Matthew Flaschen Sep 5 '12 at 19:21
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Under the law, prior art must fit within one of the categories defined in 35 U.S.C. 102. The most likely categories for a youtube video are (1) a "printed publication" or (2) evidence of the invention being "known ... by others in this country."

There is at least one case holding that a video is NOT a printed publication. Diomed, Inc. v. AngioDynamics, Inc., 450 F. Supp. 2d 130 (D. Mass. 2006). In that case, the court ruled that "The definition of 'printed' cannot be stretched to include a presentation which does not include a paper component or, at minimum, a substitute for paper such as the static presentation of slides." To be "known by others," you must be able to show that the video was sufficiently available to the public. This could be shown by showing that it is searchable on the key search terms or that it was actually accessed by a number of people.

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I have seen a YouTube video cited as prior art in an Office action, and a claim rejection was based in part on the YouTube video. So yes, YouTube videos can be prior art. In the Office action, the Examiner provided a screenshot of the video as well as its URL.

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Can you provide a link to the video or patent application? –  Raphael Wimmer Sep 22 '12 at 13:47
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