High Standard of Proof for Internet Publications

In a recent decision, the Austrian Patent Appeal Board had to decide on the question whether an internet disclosure was proven to be published before the priority date of the patent in suit. In this decision, the Patent Appeal Board clarified that disclosures on the internet certainly do belong to the prior art. However, in view of the volatility of disclosures published on the internet, there is high standard of proof for the party relying on the internet publication.

In the present case, the opposing party relied on printouts including the information "http: .../20050311..." in its lower margin, which - in view of the opposing party - was sufficient evidence to prove a publication date of 11 March 2005. Additionally, the opposing party relied on an affidavit by the office managers of the "Wayback Machine" in which the manager generally explained how the internet archive "Wayback Machine" functions. However, when the Appeal Board checked the internet archive - as suggested by the opposing party - only a corresponding publication dated 27 February 2007 could be found. This date was clearly after the priority date of the patent in suit.

Accordingly, in view of the fact that in the internet archive no pre-publication could be traced and no further evidence was submitted apart from the mere hint on the lower margin of an internet printout the Appeal Board found that it was not proven that the asserted facts were published prior to the priority date.

In its decision, the Austrian Patent Appeal Board also explicitly referred to decisions of the German Patent Court and the European Patent Office (T 1134/06) and clarified that the standard of proof for internet publications in Austria corresponds to the requirements as set out in the decisions by the German Patent Court and the EPO Boards of Appeal.

Dr Rainer Beetz, LL.M.