Design blog blogs about designs on blogs

'Alicante' clock with water
feature, here

A feature in the current issue of the Office for Harmonisation in the Internal Market (OHIM) Alicante NEWS is entitled "Prior designs on blogs". It states (with some omissions, including some citations) as follows:

"Many applications for a declaration of invalidity of a registered Community design (RCD) include evidence for prior designs in form of printouts from the Internet. This evidence is often rejected by the Invalidity Division ...on the ground that it does not prove the date of disclosure of the prior design ...

One way of adding credibility to evidence from the internet is the use of the Wayback Machine (http://www.archive.org/) giving access to an Archive of web pages referring to the dates when the pages were published on the Internet .... Another way is to print the contents of the web pages with an indication of the date of the printing ....

However, the Archive is far from being complete and the printout may be too late, ... after the date of filing of the RCD. The problem is known not only to OHIM but also to other IP Offices, in particular the European Patent Office (EPO). In its Guidelines for Examination the EPO dedicates an entire Section to “Internet Disclosures” and the issue of establishing dates.

OHIM recently received an invalidity application where the novelty of RCD 1667049-0003 ... was contested on the basis of evidence for a prior design (photo below, right) posted on a web blog. Inspired by the Guidelines of the EPO [and how many people can write "Inspired by the Guidelines of the EPO" with a straight face?], the Invalidity Division ...reasoned in its decision (ICD 7178) that

“as a matter of principle, disclosures on the Internet form part of the prior art. Information disclosed on the Internet or in online databases is considered to be publicly available as of the date the information was publicly posted. Internet websites often contain highly relevant information. Certain information may even be available only on the Internet from such websites. This includes, for example, online publications of design registrations by IP Offices.

The nature of the Internet can make it difficult to establish the actual date on which information was made available to the public: for instance, not all web pages mention when they were published. Also, websites are easily updated, yet most do not provide any archive of previously displayed material, nor do they display records which enable members of the public - including examiners - to establish precisely what was published and when.

It is theoretically possible to manipulate the date and content of an Internet disclosure (as it is with traditional documents). However, in view of the sheer size and redundancy of the content available on the Internet, it is considered very unlikely that an Internet disclosure has been manipulated. Consequently, unless there are specific indications to the contrary, the date can be accepted as being correct [This would appear therefore to be a rebuttable evidential presumption].

In the present case of ICD 7178, the publication appeared on a blog with an exact indication of the date, even the time when it was put on the blog. It lies in the nature of a blog that it is addressed to the public and that the contributions published on a blog are dated exactly [these dates can be adjusted after the event, or indeed before it -- and a blogpost commenced and posted on one date but then recalled, edited and reposted on a later date will bear only the earlier date if Google's deafult settings are used on Blogger.  But where the blog is available to readers via an email circular, the time and date of dispatch of the email circular can corroborate a contemporaneous blog post]. Consequently, there is no doubt that the prior designs shown were made available to the public prior at the date indicated in the blog which is a date more than 12 months prior to the date of filing of the RCD.”

At the end, the Invalidity Division decided to declare the RCD invalid in view of the evidence derived from the Internet".

There is a further point to bear in mind. Blog settings include a time-zone option, which sets the blog's "clock" for all posting purposes and which is not sensitive to the location of a blogger.  I set my blogs to Greenwich Mean Time.  However, if I'm posting in Hong Kong or California my blog posts can easily be accorded calendar dates earlier or later than that of actual posting.