refs on "What is a publisher"
Blank Frank
BF at farc.org
Fri Mar 30 09:10:53 PST 2001
This post contains refs to answers to the question, "What is published?"
for
patent (prior art) reasons. You may find it also bears on "Who is a
publisher?"
(with accompanying questions about their 'privledges' if any).
(FYI; Forwarded from a private list.)
> any more word on what it takes to be considered "published"?
First, I found a convincing legal analysis article. Reading it,
it looks like you can just start a website called something like
_Journal of
Cool Stuff We Noticed This Week While Getting Our Work Done_, using
plenty
of relevant meta tags and so on for each article you publish. From
http://www2.ari.net/foley/epub.html ...
----
Subsequently, the Court of Appeals for the Federal Circuit verified that
public accessibility is "the touchstone in determining whether a
reference
constitutes a 'printed publication'" (In re Hall, 228 USPQ 453, 455
[Fed.
Cir. 1986]).
Accordingly, the current test for determining whether a disclosure is a
printed publication focuses on the accessibility of the information
rather
than on the form of the alleged prior art. Therefore, the fact that a
reference is "printed" electronically, rather than on paper, is relevant
to
the printed publication determination only to the extent that
publication in
an electronic form may affect public availability.
Internet publications are particularly amenable to the current printed
publication test. Any information posted on Internet becomes accessible
to
interested parties throughout the world. Moreover, servers that store
the
posted information also can provide the date that the information became
accessible.
-----
-------
Next, I found something both recent and quasi-official! From a WIPO
(international law) report in November 2000 summarizing U.S. law on the
issue. Most interestingly, the report explains that official U.S.
searches
for prior art DO include scouring the web in a couple defined ways:
-----
B. United States of America
21. 35 United States Code (U.S.C.) Section 102(a) and (b) provides:
"§ 102 Conditions for patentability; novelty and loss of right
to
patents
A person shall be entitled to a patent unless --
(a) the invention was known or used by others in this
country, or patented or
described in a printed publication in this or a foreign
country,
before the invention
thereof by the applicant for patent, or
(b) the invention was patented or described in a
printed
publication in this or a
foreign country or in public use or on sale in this country,
more
than one year prior to
the date of the application for patent in the United States, or
..."
22. The law does not contain any special provision concerning disclosure
on
the Internet
and its prior art effect. However, the "Manual of Patent Examining
Procedure (MPEP),"
issued by the United States Patent and Trademark Office (USPTO),
provides
guidelines with
respect to the status of electronic publications as prior art and
Internet
searching. In addition,
the USPTO has published an "Internet Usage Policy"7 in order to provide
guidance to its
employees regarding the use of the Internet for official USPTO business.
The "Policy" covers
the usage of the Internet to search for information concerning patent
applications.
(a) "Printed publication"
23. 35 U.S.C. Section 102(a) and (b) states that a "printed publication"
constitutes prior art.
In a general sense, a reference is proven to be a "printed publication"
upon
a satisfactory
showing that such document has been disseminated or otherwise made
available
to the extent
that persons interested and ordinarily skilled in the subject matter or
art,
exercising reasonable
diligence, can locate it.8
24. MPEP §2128 confirms that an electronic publication, including an
online
database or
Internet publication, is considered to be a "printed publication" within
the
meaning of
35 U.S.C. 102(a) and (b), provided the publication was accessible to
persons
concerned with
the art to which the document relates. Indeed, in In re Wyer, the court
stated: "Accordingly,
whether information is printed, handwritten, or on microfilm or a
magnetic
disc or tape, etc.,
the one who wishes to characterize the information, in whatever form it
may
be, as a `printed
publication' *** should produce sufficient proof of its dissemination or
that it has otherwise
been available and accessible to persons concerned with the art to which
the
document relates
and thus most likely to avail themselves of its contents" (citation
omitted).9
25. As regards the level of public accessibility required, the court
ruled
that a single copy of
a doctoral thesis indexed and shelved in a library is sufficiently
accessible to the public to
constitute prior art as a "printed publication."10 Even if access to
the
library is restricted, a
reference will constitute a "printed publication" as long as a
presumption
is raised that the
portion of the public concerned with the art would know of the
invention.11
However, in In re
Cronyn, where doctoral theses were shelved and indexed by index cards
filed
alphabetically
by student name and kept in a library and where the index cards only
listed
the student names
and titles of the theses, two of three judges held that the students'
theses
were not accessible
to the public, since they could only be found if the researcher's name,
which bears no
relationship to the subject of the thesis, was known.12
26. However, if documents, intended to remain confidential, are
distributed
internally
within an organization, they are not "printed publications" no matter
how
many copies are
distributed.13
(b) Date of availability
27. According to MPEP §2128, prior art disclosures on the Internet or an
online database
are considered to be publicly available as of the date the item was
publicly
posted. If the
publication 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), although it may be relied upon
to
provide evidence
regarding the state of the art.
28. As a general rule, in order to establish the date on which a certain
publication became
accessible to the public, evidence showing routine business practices
can be
relied upon to
prove accessibility. Specific evidence showing a particular date of
cataloging and shelving of
the publication is not always necessary.14
(c) Citation
29. According to Article 10 of the "Internet Usage Policy," all Patent
Organization users of
the Internet for patent application searches shall document their search
strategies in
accordance with the practices and procedures established in MPEP §719.05
subsection I.(F).
The MPEP sets up detailed rules for recordation of the field of search
and
search results by
the examiners. Office copies of an electronic document must be retained
if
the same
documents may not be available for retrieval in the future.15 The MPEP
stipulates that this is
especially important for sources such as the Internet and online
databases.
30. As regards the format of the citation of an electronic document that
can
be retrieved
from an online source or sources found on electronic storage media, the
USPTO follows the
WIPO Standard ST.14 (Recommendation for the Inclusion of References
Cited in
Patent
Documents).16
(d) Search via the Internet and confidentiality
31. Article 9 of the "Internet Usage Policy" states that, when the
Internet
is used to search,
browse, or retrieve information relating to a patent application, other
than
a reissue
application or reexamination proceeding, Patent Organization users MUST
restrict search
queries to the general state of the art unless the Office has
established a
secure link over the
Internet with a specific vendor to maintain confidentiality of the
patent
applications.
Non-secure Internet search, browse, or retrieval activities that could
disclose proprietary
information directed to a specific application, other than a reissue
application or
reexamination proceeding, are NOT permitted. The same policy applies to
the
use of the
Internet as a communication medium for connecting to commercial database
providers.
----
That's
http://www.google.com/search?q=patent+%22prior+art%22+%22internet+publicatio
n%22&hl=en&lr=&safe=off&start=10&sa=N
More information about the cypherpunks-legacy
mailing list