Thanks for the comment on the “definitiveness” of dates on the Wayback Machine. Just confirms, like the MPEP, that the Wayback Machine may not yet be ready for “prime time” as a “printed publication” bar source.

Jeff,

From my 2011 article, especially page 50 at footnote 266:

Archived web pages (e.g., such as those provided in the Wayback Machine, see supra note 22) may also test the limits of permanency and especially the evidentiary value of such web pages to prove a “printed publication” bar. Supposedly the United States Patent and Trademark Office has accepted date stamps as evidence of when a given web page was “publicly accessible.” See Wayback Machine, WIKIPEDIA, http://en.wikipedia.org/wiki/Wayback_Machine (last visited Feb. 7, 2011); see also MPEP § 2128:

Prior art disclosures on the Internet or on an on-line database are considered to be
publicly available as of the date the item was publicly posted. Absent evidence of the
date that the disclosure was publicly posted, 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) or (b). However, it may be relied upon to provide evidence regarding the state
of the art.

But whether a court will accept (and under what circumstances) such archived web pages as proof of a
“printed publication” bar remains to be seen. Cf. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d
1151 (Fed. Cir. 2004) (conflicting and insufficient evidence of when undated one page document was
“disseminated” to support summary judgment that document was “printed publication” under 35 U.S.C. §
102(b)).

You’re right to “wonder.” Here’s footnote 2 from Lister that I briefly mention in my article:

Because there is no evidence in the record suggesting that such a search
would have yielded an unmanageable number of references, we need not
decide whether in some circumstances an overwhelming number of search
results might warrant a conclusion that a particular reference included in
the list was not publicly accessible.

Here’s the follow up comment in my 2011 article on footnote 2:

Two components of the above statement (“unmanageable number of references”
and “overwhelming number of search results”) are interrelated. But because Judge Prost’s
opinion in In re Lister provides no specifics about what “search results” (if any) were part
of the “record,” we are currently left with no specific guidance by the Federal Circuit as
to when the number of references becomes “unmanageable,” as well as when the search
results become an “overwhelming number” to preclude the posted document of interest
from qualifying as a “printed publication” bar. Another component of this statement (“in
some circumstances”) also leaves us guessing as to whether “unmanageable” and
“overwhelming number” are to be the exception, not the rule, for when electronically
posted documents retrieved by an Internet search qualify as a “printed publication” bar.

As I noted in the conclusion to my 2011 article, until the Federal Circuit clearly articulates the criteria for when Internet search results become a “manageable number,” it is virtually impossible to apply the “printed publication” bar rationally and consistently to electronically posted documents searchable via the Internet.

The Benson information was scanned and stored. Search engines don’t search Archive.org because it instructs robots not to crawl its servers, but the archived website shows that it had a search engine built into it for searching that site, and presumably a search on computerized voting would have turned up the article of interest. Thus, I think there’s a case to be made that the information was accessible and searchable on the Internet, even if one first had to find the Risks website via a search and then search for specific articles there. Benson shows up in scans by Archive.org of that site before the critical date.

- Jeff Lindsay, APP, Shanghai

I just did a quick search on a specific term and received 18 million plus hits in 0.31 seconds. At roughly ten per page, if the item is not in the top 50, or lets be generous and say top 500, is the item really “there” in any meaningful way? Finding 1 in 17,999,500 remaining items sounds worse that finding a needle in a haystack (which I just googled and found that at the more difficult range one would be dealing with at most two orders of magnitude less – in the hundreds of thousands).

Reminds me, does an all-knowing PHOSITA even have to be concerned with finding the item? Doesn’t he, like, already know the contents (or that he can just turn to result 12,726,335 of the google results and directly obtain what he needs?