How 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 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). In such cases, the document may still be used to provide evidence regarding the state of the art.
For documents without clear publication dates, examiners may seek assistance:
“Examiners may ask the Scientific and Technical Information Center to find the earliest date of publication or posting.”
In cases where the authenticity or accessibility of an electronic document is challenged, the burden shifts to the applicant. They may file an affidavit or declaration under 37 CFR 1.132 to dispute the public availability or the date it became publicly accessible.
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