Judge-Permitting, A Way(back) to Find Online Publication Dates 

Cassidy Serger, Contributing Member 2024-2025

Intellectual Property and Computer Law Journal

I. Introduction

Patent law lives and dies by dates. Under the America Invents Act, the first inventor to disclose their invention to the United States Patent and Trademark Office (USPTO) has the claim to the patent.[1] The date of this disclosure is known as the “filing date.”[2] A patent application may claim the benefit of a prior application’s filing date, the “priority date,” if the invention is fully disclosed in the prior application.[3] For the USPTO to grant an application on the filing date, a patent must both be novel and nonobvious, assessed from the priority date of the application.[4] Patent examiners search for “prior art,” or disclosures of the invention older than the application, called references, to determine if an invention is novel and nonobvious.[5] Consequently, knowledge of a reference’s publication date is critical to determine if the reference is prior art.

Experts estimate that in 2025, global cloud storage will reach over 200 zettabytes of data.[6] Such vast data creation makes it nearly impossible to keep track of everything on the internet, much less know when it was made available. There is a void of documentation and filing of human activity on the internet. To address this, Internet Archive, a nonprofit organization, operates a service called the “Wayback Machine.” which is a digital library that allows users to access archived versions of websites.[7] Users can type in a URL, select a date range, and view an archived Web version.[8] Considering the importance of filing dates in patent law, the Wayback Machine could provide a valuable tool for practitioners determining which references are properly prior art.

This blog explores the Wayback Machine as a tool for assessing dates under § 35 U.S.C. 102, and the weight that different agencies and courts should assign such evidence. Part II provides background on patent grant and review proceedings, the distinct standards employed in both, and how the dates from the Wayback Machine fit into each analysis. Part III then discusses the varying approaches courts have taken regarding Internet Archive evidence. Finally, Part IV advocates that all courts should, as a matter of policy, take judicial notice of the reliability of the evidence supplied by the Wayback Machine.

II.         Background

The Leahy-Smith America Invents Act

In 2011, Congress passed the Leahy-Smith America Invents Act, making the patent system a first-to-file system.[9] Under this Act, an inventor is disqualified from a patent if a prior disclosure of the same or similar invention is available to the public.[10] Before this change, the United States operated under a first-to-invent system in which patents were awarded to the first inventor rather than the first inventor to disclose.[11]

During patent prosecution, patent practitioners or inventors file a patent application with the USPTO.[12] Then, a patent examiner reviews the application to ensure it meets patent application requirements as set by Congress, such as novelty and nonobviousness.[13] Often, examiners will search for relevant prior art that could render the applicant’s disclosure non-patentable.[14] Under the first-to-file system, this prior art is assessed from the application’s priority date, which means the examiner can only consider prior art that was disclosed or made available before the application was filed.[15] Patent examiners are accurately trained to determine publication dates.[16] Indeed, their findings as to a publication date are considered “factual findings from a legally authorized investigation.”[17]

As a result, both practitioners and examiners must know not only the priority date of the application under review but also the publication dates of any prior art being referenced as relevant to the patent application.

The Internet Archive

Due to the vast array of information just a click away, tracking when something was published online has become increasingly difficult. The Internet Archive has developed a catalog of internet content to achieve its mission of providing universal access to information.[18] The Internet Archive seeks to preserve web history by building a catalog of archived sites, books, movies, and other media.[19] Any user can upload media to the Archive, which currently contains 835 billion web pages and 44 million books and texts.[20]

The Wayback Machine is an initiative of the Internet Archive that allows users to search  cataloged web archives.[21] The service allows users to search for archived sites or old versions of sites.[22] A search will show archived and current versions of a site, along with the date captured, commonly referred to as a “time stamp.”[23] As such, patent practitioners could use the Wayback Machine to determine when a reference was made publicly available.

Though the Wayback Machine is useful for patent applications, it was not designed for litigation.[24] Users can request affidavits and certified copies of the archives, but Internet Archive asks its users to seek other methods of establishing the contested information.[25] Internet Archive does so to allow its staff to dedicate their time and resources to its mission of preserving human knowledge.[26]

USPTO and Court Treatment of Wayback Machine Information

For purposes of patent examination, courts have held that publications obtained via the Wayback Machine are deemed publicly accessible at the date and time provided by the time stamp.[27] A patent applicant who denies the validity of Wayback Machine evidence must demonstrate the evidence’s unreliability.[28] In Valve Corp. v. Ironburg Investments Ltd., the Federal Circuit reviewed the Patent Trial and Appeal Board’s ruling after two patents were subject to an inter partes review, meaning they were challenged as obvious or not novel after the patents were issued.[29] The Patent Trial and Appeal Board (PTAB), an administrative judicial body within the USPTO, presides over inter partes review proceedings.[30] During the review, an examiner used the Wayback Machine to cite a scholarly article that was published before the patent application’s priority date.[31] However, the PTAB held that the Wayback Machine evidence was insufficient to make the disclosures prior art and ruled that the challenged patents were still valid.[32] Valve Corporation appealed this ruling to the Federal Circuit.[33]

The Federal Rules of Evidence require that an exhibit be authenticated by “a comparison with an authenticated specimen by an expert witness of the trier of fact.”[34] The court in Valve Corp. concluded that examiners may use the Wayback Machine as a source of information to determine when a web reference was first made available to the public.[35] The court ultimately held that the Wayback Machine’s time stamp for the prior art was highly persuasive evidence of the public accessibility of the prior art.[36] As a result, the Federal Circuit reversed the PTAB’s holding that the Wayback Machine evidence was not prior art and remanded to the PTAB to consider the challenged patent in light of the court’s holding.[37]

Likewise, some federal district courts have taken judicial notice of the contents of webpages accessed via the Wayback Machine “as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”[38] For instance, in Erickson v. Nebraska Machinery Company, the court compared copies of current versions of websites with versions available on the Wayback Machine to determine that the websites were substantially identical during the relevant timeframe.[39] Courts in trademark cases have also relied on historical versions of webpages accessed via the Wayback Machine as evidence of the mark’s use.[40]

In addition, the Third Circuit supports the use of Wayback Machine evidence in criminal prosecutions where an expert witness testifies as to the reliability of the site.[41] In United States v. Bansal, two defendants appealed their jury convictions for a crime arising from an internet-based substance distribution scheme.[42] The district court admitted archived screenshots of the defendants’ website, and the defendants argued that this evidence was not properly authenticated.[43] However, at trial, the government called a witness to testify about the Wayback Machine and its reliability and compared the archived screenshots with other authenticated images of the website.[44] The Third Circuit ruled that the Wayback Machine evidence was authenticated and properly admitted.[45]

However, not all courts have been as accepting of Wayback Machine evidence. Specifically, the Fifth Circuit has held that archived webpages are not authenticated under the Federal Rules of Evidence and are not appropriate candidates for judicial notice.[46] In Weignhoffer v. David Shoring, Inc., the plaintiff offered an archived webpage of the terms and conditions of an auction in a breach of contract suit.[47] The appellate court held that the district court abused its discretion when it used the archived webpage to determine the meaning of some terms in the auction’s terms and conditions.[48] According to the Fifth Circuit, an archived webpage from the Wayback Machine is not sufficiently authenticated because it “is not so reliable and self-explanatory that it may be an appropriate candidate for judicial notice.”[49] The Fifth Circuit then remanded the case to the district court to be construed under proper evidence.[50]

III.                   Discussion

Examiners act as factfinders during the patent prosecution process and must compile evidence regarding an application’s patentability. District courts are beholden to the Federal Rules of Evidence.[51] The Patent Trial and Appeal Board is also subject to the Federal Rules of Evidence, despite being an administrative agency.[52] As such, evidence that a party wishes to submit as prior art against a patent must have some level of reliability or must be authenticated in some way.

Some courts have taken judicial notice of archived webpages found on the Internet Archive.[53] Others, however, have held that Wayback Machine evidence is unauthenticated and, therefore, inadmissible.[54] Ultimately, judicial notice is the best path forward for courts. The Internet Archive is a nonprofit and a library.[55] Due to the ever-expanding nature of the internet, the Internet Archive’s services are crucial, and the site keeps a much-needed historical database unlike any other. In addition, the Wayback Machine uses a method known as “crawls” to archive sites, wherein an automated web crawler systematically visits and downloads the content of websites, thereby capturing screenshots of the site.[56] Consequently, its data is the most reliable of its kind.

The Internet Archive is filling a much-needed void of data preservation in the digital era. As a matter of policy, courts should not clog up the work of the Internet Archive by demanding that the sites come with affidavits or be further authenticated in other ways. Instead, courts should recognize the important function that the Internet Archive and the Wayback Machine provide and should take judicial notice of evidence supplied therefrom.

IV.      Conclusion

The Wayback Machine provides a way for practitioners to track the publication dates of resources made available on the internet. However, courts disagree about whether Wayback Machine evidence is sufficiently authenticated when supplied from the Internet Archive. Because the Internet Archive is a nonprofit acting as a library, its evidence should be deemed reliable. In addition, because of the organization’s critical mission of preserving internet history, courts should take judicial notice of the evidence to reduce the burden on such a valuable organization.

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[1] 35 U.S.C. § 102(a)(2) (2011).

[2] 37 C.F.R. § 1.741; see also U.S. Patent & Trademark Office, Manual of Patent Examining Procedure § 2754.01 (9th ed. Rev. Jan. 2024), available at https://mpep.uspto.gov/RDMS/MPEP/current [https://perma.cc/C45Q-LE4U].

[3] 35 U.S.C. § 119-121.

[4] See 35 U.S.C. § 102-103.

[5] USPTO 2024 Manual, supra note 2, § 2100.

[6] Mariusz Michalowski, How Much Data is Generated Every Day in 2024?, Spacelift (Nov. 19, 2024), https://spacelift.io/blog/how-much-data-is-generated-every-day [https://perma.cc/Q8WP-QXNA]. A zettabyte is equal to one trillion gigabytes.

[7] Wayback Machine, Internet Archive, https://web.archive.org/ [https://perma.cc/762X-DULD].

[8] Using the Wayback Machine, Internet Archive,  https://help.archive.org/help/using-the-wayback-machine/ [https://perma.cc/THQ2-MMAE].

[9] 35 U.S.C. § 102 (2011).

[10] 35 U.S.C. § 102 (2011).

[11] 35 U.S.C. § 101 (1988).

[12] 35 U.S.C. § 111 (2011).

[13] USPTO 2024 Manual, supra note 2, § 700.

[14] Id.

[15] 35 U.S.C. § 102 (2011).

[16] See, e.g., USPTO 2024 Manual, supra note 2, § 2128.

[17] Fed. R. Evid. 803(8)(A)(iii).

[18] Id.

[19] Id.

[20] Id.

[21] Using the Wayback Machine, Internet Archive,  https://help.archive.org/help/using-the-wayback-machine/ [https://perma.cc/THQ2-MMAE].

[22] Wayback Machine General Information, Internet Archive, https://help.archive.org/help/wayback-machine-general-information/ [https://perma.cc/NE4Z-YLDN].

[23] Id.

[24] Information Requests, Internet Archive, https://web.archive.org/web/20220924235750/http://archive.org/legal/ [https://perma.cc/7HWA-LFA8].

[25] Id.

[26] Id.

[27] See Valve Corp. v. Ironburg Inventions Ltd., 8 F.4th 1364, 1374-75, (Fed. Cir. 2021).

[28] Id.

[29] Id. at 1367.

[30] Oil States Energy Services LLC v. Greene’s Energy Group LLC, 584 U.S. 325 (2018).

[31] Valve Corp., 8 F.4th at 1374.

[32] Id. at 1367.

[33] Id.

[34] Fed. R. Evid. 901(b)(3).

[35] Valve Corp., 8 F.4^th at 1374, quoting America Invents Act (AIA) Frequently Asked Questions, United States Patent and Trademark Office, https://www.uspto.gov/patents/laws/america-invents-act-aia/america-invents-act-aia-frequently-asked [https://perma.cc/NQ6F-PVKS].

[36] Id.

[37] Id. at 1381.

[38] Erickson v. Neb. Mach. Co., No 15-cv-01147-jd, 2015 WL 4089849 at *1 (N.D. Cal. July 6, 2015).

[39] Id.

[40] See UL LLC v. Space Chariot, 250 F.Supp. 3d 596 (C.D. Cal. 2017) at note 2.

[41] United States v. Bansal, 663 F.3d 634, 667-68 (3rd Cir. 2011).

[42] Id. at 640.

[43] Id. at 667.

[44] Id. at 667-68.

[45] Id.

[46] Weinhoffer v. David shoring, 23 F.4^th 579, 581 (5th Cir. 2022).

[47] Id.

[48] Id. at 582.

[49] Id. at 583.

[50] Id.

[51] See Valve Corp. v. Ironburg Inventions Ltd., 8 F.4th 1364, 1371, 2021 USPQ2d 867; see also Weinhoffer, 23 F.4th at 582.

[52] See Valve Corp, 8 F.4th at 1364.

[53] Id.

[54] See Weinhoffer, 23 F.4th at 581.

[55] About the Internet Archive, Internet Archive, https://archive.org/about/ [https://perma.cc/Z3WU-FTCB].

[56] Using the Wayback Machine, Internet Archive,  https://help.archive.org/help/using-the-wayback-machine/ [https://perma.cc/THQ2-MMAE].