In the context of patent law, using the Internet as a source of prior art when assessing whether an invention is novel and inventive, may be problematic if it is difficult to ascertain precisely when information on websites became available to the public.
Background
In most patent laws, an invention must be new and inventive to be considered patentable, i.e., to be validly patented. An invention is considered new if it does not form part of the prior art, i.e., if it was not already disclosed in the prior art. An invention is considered inventive if it is not obvious in view of the prior art. The prior art is essentially everything available to the public before the filing date of the patent. In practice, if a device or a method was already known before the filing date of the patent covering the device or the method or if the device or method is obvious in view of what was known before the filing date, then, in general, it is not considered new or not considered inventive, and then not considered patentable. A patent cannot be obtained for the device or method, or, if obtained, it can generally be "invalidated". The identification of the prior art is therefore of utmost importance to determine whether an invention is patentable, i.e. whether a patent can be granted for an invention. The purpose of the novelty criterion is to prevent the prior art being patented again. The Internet is a popular source of technical information and is of particular interest for the purposes of establishing the prior art. Its use is however surrounded by concerns as to its reliability.T 1134/06, Reasons 3.6.
In August 2009, the European Patent Office published a "notice concerning internet citations" to " out the practice followed at the EPO when citing documents retrieved from the internet in both the European and the PCT procedure." The notice is not binding on the Boards of Appeal. Regarding the standard of proof, the notice reads: In 2012, Board of Appeal 3.5.04 issued two decisions, namely T 1553/06 and T 2/09, on the issue of Internet disclosures. The two decisions originate from a contrived test case built by the parties, i.e. the patent proprietor and the opponent. In decision T 1553/06, the Board proposed a test to decide whether a document stored on the World Wide Web has been made available to the public, whereas, in decision T2/09, the Board dealt with the alleged public availability of an email transmitted overthe Internet. The EPO Guidelines cite the Internet Archive as well as Wikipedia as possible and credible sources of prior art.
Germany
In 2002, "the Bundespatentgericht in case BPatG 17W 1/02 confirmed in later BPatG 17W 47/00, ruled that the Internet was not a reliable source for determining the state of the art. This applied also to web archives such as the Internet Archive." T 1134/06, Reasons 3.3.1.
United States
Internet publications can be relied on as printed publications and thus as prior art under United States patent law. The effective date of the publication will be determined by evidence, such a date of posting listed in the publication itself, or a date of archiving in the Internet Archive. In August 2006, the United States Patent and Trademark Office ordered examiners to stop using Wikipedia as a source of information for determining the patentability of inventions. However, according to The Patent Librarian's Notebook's blog, examiners continue to cite it, and the number of United States patents issued in 2008 that cited Wikipedia articles nearly doubled to 477, compared to 2007. It increased to 809 citations in 2009.
