SAINT ISLAND INTELLECTUAL PROPERTY GROUP

With the vast advancements in information and computer technologies, using information contained in web pages as evidence in patent invalidation proceedings is quite common nowadays, especially when there are enormous amounts of information available on the Internet. However, since information on the Internet changes more frequently than information in conventional media, it is relatively difficult to preserve web page information or to use such information as legal evidence. Hence, archived web pages that are retrievable using the Wayback Machine, a service provided by the Internet Archive, a non-profit organization, have become an important source of prior art data in patent invalidation proceedings. 

Whether or not archived web pages retrieved using the Wayback Machine are admissible as competent evidence in patent invalidation proceedings in Taiwan is still in a grey area, and it is now an issue being delved into widely in the patent community. In a recent decision rendered on a patent invalidation case, the Taiwan Intellectual Property Court did not admit a printout of an archived web page retrieved using the Wayback Machine as competent prior art reference. The IP Court reasoned that the content of the web page itself did not disclose the date of publication of the relevant information and that the retrieved web page merely bore a time stamp of the Internet Archive. The IP Court further commented that no relevant documentary evidence was additionally provided by the invalidation petitioner to prove the time the relevant information was published, and that the relevant web page was no longer available when a search was conducted using the Wayback Machine during the appellate proceedings. 

Viewed from another perspective, if the actual date of publication of the relevant information on an archived web page can be proven by other documentary evidence or the relevant web page is searchable using the Wayback Machine during the invalidation proceedings, it appears that a printout of an archived web page obtained through the Wayback Machine might be admissible as competent prior art disclosure. However, it is worth observing whether there will be future court decisions giving support to such presumption.