What is the Wayback Machine® and how is it used in patent law?
The Wayback Machine® is a digital archive maintained by the Internet Archive, a non-profit organization. It’s used to view archived versions of websites as they existed at specific points in time. In patent law, the Wayback Machine® can be a valuable tool for establishing the public accessibility of online content on a specific date. According…
Read MoreHow does the USPTO treat foreign language publications as prior art?
The USPTO considers foreign language publications as potential prior art, provided they meet the criteria for public accessibility and publication date. According to MPEP 2128: “Prior art publications in a language other than English are considered as prior art as of their publication date, even though an English translation may not be available until a…
Read MoreHow does the USPTO define “printed publication” for prior art purposes?
The USPTO’s definition of “printed publication” for prior art purposes is broad and evolving. According to MPEP 2128: “The term “printed publication” refers to such publications as books, magazines, journals, microfilm, computer databases, and Internet publications.” This definition is not limited to traditional printed materials but includes various forms of media that can disseminate information.…
Read MoreCan a temporarily available document be considered a printed publication?
Yes, a temporarily available document can be considered a printed publication under certain circumstances. The MPEP 2128 provides guidance on this matter: “A reference is considered publicly accessible even if it was available only for a short time or to a limited number of people, if the interested public could have accessed the document through…
Read MoreCan 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…
Read MoreHow is the publication date of an electronic document determined for prior art purposes?
The publication date of an electronic document is crucial for determining its status as prior art. According to the MPEP: “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.” However, if the publication itself does not include a…
Read MoreCan oral presentations qualify as prior art under the “printed publication” category?
Oral presentations alone typically do not qualify as “printed publications” for prior art purposes. However, materials associated with an oral presentation may qualify under certain circumstances. MPEP 2128 states: “An oral presentation at a scientific meeting or a demonstration at a trade show may be prior art under 35 U.S.C. 102(a)(1)’s provision: ‘otherwise available to…
Read MoreAre electronic publications considered “printed publications” for prior art purposes?
Yes, electronic publications, including online databases and Internet publications, are considered “printed publications” for prior art purposes under 35 U.S.C. 102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b), provided they meet the public accessibility requirement. The MPEP states: “An electronic publication, including an online database or Internet publication (e.g., discussion group, forum, digital video, or…
Read MoreHow is the public accessibility of an electronic publication determined?
The public accessibility of an electronic publication is determined on a case-by-case basis, considering various factors. According to the MPEP, citing Medtronic, Inc. v. Barry: “The determination of whether a document is a ‘printed publication’ under 35 U.S.C. § 102(b) ‘involves a case-by-case inquiry into the facts and circumstances surrounding the reference’s disclosure to members…
Read MoreWhat is the “Bayer” rule for determining public accessibility of printed publications?
The “Bayer” rule, established in In re Bayer, 568 F.2d 1357, 196 USPQ 670 (CCPA 1978), is a guideline for determining public accessibility of printed publications. According to MPEP 2128: “A reference will be considered publicly accessible if it was disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in…
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