Can social media posts be considered prior art?
Yes, social media posts can be considered prior art, provided they meet the public accessibility requirements. The MPEP specifically addresses this:
“Social media websites on the Internet, such as YouTube®, Twitter®, Facebook®, and public forum posts, can be a source of prior art, provided the public accessibility requirements, as laid out in subsection I are met.”
However, not all social media content is automatically considered publicly accessible. The MPEP notes:
“Public accessibility is determined on a case-by-case basis taking into consideration factors such as, where the information is posted, privacy restrictions placed on the posting, the length of time it was posted, and whether the information is indexed for searching.”
It’s important to note that the reliability of timestamps on social media websites may need careful scrutiny, as they may not be as reliable as other types of Internet publications. Examiners may need to rely on these timestamps to establish the public accessibility date, especially if the content is not archived by services like the Wayback Machine®.
To learn more: