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Blockchain Based Evidence in Court and Before PTOs?

Blockchain Based Evidence in Court and Before PTOs?

Blockchain Based Evidence in Court and Before PTOs? IPwe’s Idea Capture as a Supplement to the Wayback Machine

Introduction: The Ascendance Flight Technologies Case in Japan

Ascendance Flight Technologies successfully challenged the Japan Patent Office, which had refused to grant a design patent for lack of novelty, using evidence from the Wayback Machine. This case sheds light on the limitations of using internet publications like the Wayback Machine as a reliable source for determining IP validity and prior art publication dates and underscores the importance of seeking innovative alternatives. One such alternative, exemplifying the use of blockchain in court and before patent offices (PTOs), is IPwe’s Idea Capture—a blockchain based evidence feature.

Why the Wayback Machine Did Not Work

Validity is at the core of all IP disputes and qualitative metrics. Furthermore, the absence of relevant prior art publications anticipating the protected concept (invention design, etc.) is an important part of the validity assessment (novelty/non-obviousness). For such an examination, whether a specific item was made available to the public before the relevant point in time of the assessment (priority/filing date), a publication date is required. While patent publications, newspaper publications, and scientific articles typically have a publication date, it can be challenging to reconstruct at what exact point in time digital media, like internet publications, have been made available to the public.

The case involving Ascendance Flight Technologies and the Japan Patent Office focused on a design patent for a hybrid airplane model. The Japan Patent Office refused to grant the design patent for an alleged lack of novelty, citing Wayback Machine evidence, essentially a digital archive of Ascendance Flight Technologies’ website. However, Ascendance Flight Technologies successfully disputed this prior art evidence, pointing out a common flaw in the website’s image storage that resulted in an incorrect archived publication date in this specific case. In response, the Japan Patent Office proceeded to grant the design patent.

This case highlights the potential of blockchain based evidence in court and administrative proceedings. Blockchain based evidence offers a level of security and integrity that is unparalleled. Moreover, blockchain makes timestamping an ideal alternative for proving prior art publication dates.

The Wayback Machine: A Flawed Tool for Legal Evidence

The Wayback Machine is an online service that archives web pages from the past. Its operations are overseen by the Internet Archive, a respected non-profit organization. This reputable organization allows individuals to upload snapshots of their websites, providing a degree of trust in its services.

Many IP stakeholders actively leverage the Wayback Machine because of its cost-free convenience. It provides a straightforward means to establish (or at least approximate) prior art publication dates. Its utility as a potential repository of IP related evidence has, however, often been questioned due to potential flaws: First, it cannot prove the existence of a specific piece of data at a particular point in time, a critical requirement in IP validity disputes where establishing the publication date of a document is paramount. Additionally, the Wayback Machine cannot guarantee data integrity as it is a centralized database and is not free from potential manipulations. Most importantly, the website does not cater to IP validity assessment needs and lacks features, such as time stamping, required for court and administrative proceedings.

Therefore, the use of the Wayback Machine as a source of evidence does not enjoy uniform acceptance across all jurisdictions. This inconsistency arises from its innate limitations, which could potentially compromise the archived information’s authenticity and reliability. The Internet Archive even states that “[n]ot every date for every site archived is 100% complete.” Therefore, “the specific dates available for subpages of a given site will vary” and “images that appear on [a] printed page may not have been archived on the same date as the [corresponding] HTML file.”

So, while a court can acknowledge a Wayback Machine capture, it cannot automatically be classified as a prior art publication.[1] Notably, this is far from the first occasion where the reliability of the Wayback Machine has faced scrutiny. Numerous past legal cases have cast doubt on its efficacy as an evidence source.

The Power of Blockchain Based Evidence in Court

While the Wayback Machine allows “time traveling” by visiting archived websites, it is missing a key aspect for IP. The Wayback Machine does not provide an immutable time stamp for the actual capture/upload date of the archived snapshots. A blockchain integration can effectively address this shortcoming and provides a powerful and reliable tool for preserving and verifying prior art publication evidence. Because, by nature, blockchain provides a decentralized and tamper proof ledger. This capability assures integrity, as once one stores evidence on a blockchain, no one can change or manipulate it. Thus, blockchain based evidence holds significant potential for use in patent validity disputes and other legal proceedings.

How Blockchain Based Evidence Works

Blockchain based evidence relies on a network of computers to validate and store data transactions in an encrypted, immutable ledger. Each block contains a timestamp and a link to the previous block, creating a resistant chain to data modification. Therefore, one can use blockchain to record and prove the existence of data at a specific point in time. This capability makes blockchain ideal for establishing publication dates in patent validity disputes.

IPwe’s Idea Capture: A Perfect Supplement to the Wayback Machine

IPwe tokenizes patents onto the blockchain as digital representations, called IPwe Digital Assets.

IPwe Digital Assets function as centralized, immutable value record stores, or NFTs, of verified public and private patent data. They expedite discovery, analytics, and valuations, thereby creating a more valuable business asset.

Using IPwe’s Idea Capture Module, available on Smart Intangible Asset Management, companies can choose to hash and timestamp any given document (public or confidential), leveraging the power of blockchain technology to prove their possession and/or the publication status of any document or collection of documents at a given point in time (via a checksum identifying each document uniquely). This can supplement web archives effectively and build out their IP dimension.

Why Patent Offices Should Allow Blockchain Based Evidence

Blockchain based evidence, like IPwe’s Idea Capture Module, holds the potential to support patent offices globally. Demonstrating prior art publication dates in administrative proceedings is one aspect of blockchain’s potential for patent offices. However, employing blockchain based evidence is the first step in the right direction. Blockchain based evidence in court as such it is under review, in pilot phases, or legislative processes worldwide. IPwe’s Idea Capture, tailored to patents with heightened security features, is poised to redefine proving prior art publication dates.

Learn more about Ascendance Flight Technology’s Challenge

[1] Federal Circuit Takes Judicial Notice of Wayback Machine Evidence of Prior Art

Mia Mixan
VP - Marketing and Communications