In addition to being already pervasive both in the private and the public domain of most people’s lives, the Internet has now entered also the patent world.
In fact, the Internet not only contains more information than any other database in the world, but nowadays such information can also be easily searched and retrieved thanks to freely available, powerful search engines and to an ever increasing amount of information repositories, where all kinds of electronic documents are further catalogued.

In some fields, such as the controversial field of computer-implemented inventions, the information available over the Internet (through articles, electronic books, manuals, tutorials, blogs, forums and presentation pages) clearly exceeds the amount of information disclosed in prior patent applications.

However, citations from the Internet raise the issue of what was actually available at what date.

In fact, while in most cases paper sources and prior patent applications have an unquestionable publication date, establishing a publication date for Internet documents is much more complicated. An Internet document could have been manipulated to show a different date, or it could have no date at all, or the document itself could have been edited to disclose, only at a later time, information that was not included at the dateof the original publication (which that document may still – misleadingly – refer to).

In order to clarify what needs to be done to establish when an Internet citation was made available, the EPO has recently issued an Official Notice published on the EPO’s Official Journal where it has defined its approach on the determination of the publication date of Internet citations.

The EPO seems to have adopted an approach of reasonable probability. Given the redundancy of information throughout the Internet, the number of databases that independently catalogue the information, and tools like the Wayback Machine which may show the existence of a web page back in time, an Internet disclosure can be used as prior art to the extent that the Examiner is convinced that the document was published at a certain date, with no need to provide evidence beyond reasonable doubt.

In case the applicant disagrees with the finding of the Examiner and questions the availability of a document at a certain date falling prior to a given application, the Examiner has the duty consider the applicant’s arguments, reassess the probability that the document was actually available on that date, and withdraw the document in case he is no longer convinced of his previous opinion on the availability of the document at that date in time.

A very interesting effect of this process is the creation of evidence for future reference. In fact, in case the Examiner finds that a document may be highly relevant but cannot be dated with reasonable certainty, the document will be cited as an “L” document in the search report of the application. In the future, the EPO will be allowed to refer to the date on which that document was marked as an “L” document as evidence that its disclosure was available at least at that date.

Therefore, while the guidelines contained in the EPO Official Notice may be only of partial help at present, it appears that they will result in greater help and certain in the complex task of dating Internet citations in the future.

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