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I have several pieces of prior art that were published on a website. The site is public but not in the Internet Archive or anything like that.

I have content upload dates in the database that could be provided and verified by a third party.

But what is typically needed to establish the publication date of a website's content as prior art? Affidavits, declarations? Timestamped emails with the URL and it's content being sent and described?

  • Just to clarify, what do you mean by public in this sense? That is, were they findable via a search engine? Or do you mean public in the sense that if a person knew the URL, they would be able to access it? I have a feeling this is a relevant consideration (though I don't have a full answer yet). – Maca Aug 10 '16 at 23:51
  • Yeah, that's an interesting one. For the purpose of this question, just looking for any examples of anyone successfully validating or authenticating the date of content published on a website, when the date is not printed on the page. E.g. signed affidavits, declarations, database logs, server logs, etc. – sdot Aug 12 '16 at 13:50
  • To your question though @Maca - there seems to be varying requirements for what is public. 1134 III.“PRINTED PUBLICATIONS” provides some examples: uspto.gov/web/offices/pac/mpep/s1134.html – sdot Aug 12 '16 at 13:52
  • Then the AIA (FITF) provisions seem to throw in a big a catch all, i.e. "... or otherwise available to the public." uspto.gov/web/offices/pac/mpep/… – sdot Aug 12 '16 at 13:58
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The answer is found in MPEP 2128 [R-08.2017]. In summary, yes your web-page counts as a printed publication if any "interested person" could have accessed your content without a confidentiality agreement. One common example of printed publication similar to your situation is a thesis published in a university library where no one has read the thesis but any one may do so without an agreement of confidentiality. The prior art date is the date it was released to the public. The obscureness of the location is not relevant. If it was posted privately and released for public viewing later then the date it was released to the public is the prior art date. If the content is not time-stamped then the USPTO may contact the web host to verify the date of publication.

MPEP 2128 [R-08.2017]:

Printed Publications:

I. A reference is proven to be a “printed publication” “upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it.” ...

Electronic Publications:

II. A. An electronic publication, including an online database or Internet publication (e.g. discussion group, forum, digital video, and social media post), is considered to be a “printed publication” within the meaning of 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b) provided the publication was accessible to persons concerned with the art to which the document relates. See In re Wyer, 655 F.2d 221, 227, 210 USPQ 790, 795 (CCPA 1981) (“Accordingly, whether information is printed, handwritten, or on microfilm or a magnetic disc or tape, etc., the one who wishes to characterize the information, in whatever form it may be, as a ‘printed publication’ ... should produce sufficient proof of its dissemination or that it has otherwise been available and accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents.’”)...

Date of Availability for electronic publications:

II B. Prior art disclosures on the Internet or on an online database are considered to be publicly available as of the date the item was publicly posted. Absent evidence of the date that the disclosure was publicly posted, if the publication itself does not include a publication date (or retrieval date), it cannot be relied upon as prior art under 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) or (b). However, it may be relied upon to provide evidence regarding the state of the art. Examiners may ask the Scientific and Technical Information Center to find the earliest date of publication or posting. See MPEP § 901.06(a), subsection IV.G.

III. EXAMINER NEED NOT PROVE ANYONE ACTUALLY LOOKED AT THE DOCUMENT

One need not prove someone actually looked at a publication when that publication is accessible to the public through a library or patent office. If any "interested party" could have accessed your content on the web without agreeing to confidentiality.

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