The Issue of Prior Art from the Internet: Is Cyber Art a Prior Art?

Abstract

In patent examination, prior art is evaluated to determine the patentability of an invention. Furthermore, prior art can be used by any member of the public interested in invalidating a patent or opposing a patent application. A patent examiner, patent applicant or a third party may discover and cites prior art in the Internet as it carries a wide range of information resources. Thus, the Internet has become an important source of prior art information in electronic format or cyber art. But the uncertainty and unreliability of disclosures as well as the possible abuse of the information available on the Internet may affect the patentability and validity of a claimed invention. The paper addressed the issue of accuracy, reliability and credibility of cyber art retrieved and cited in web sites like Wikipedia, Internet Archive and those with complex or published in a short period of time Uniform Resource Locator (URL) and whether they can be considered as prior art in the context of patent law. It highlights some judgements in the Case Law of the European Patent Office Board of Appeals as a proposed solution. Also, the paper reviews the patent law of the United States Patent and Trademark Office (USPTO), European Patent Office (EPO) and Japan Patent Office (JPO) on the definition of prior art and existing guidelines on Internet disclosures. Since there are no binding rules at the international regime that exhaustively defines the prior art in patent law, and the Member States has latitude in this respect, the paper adopts a comparative approach. The growing importance of cyber art as prior art is a valid reason to identify and test trustworthy solutions but not enough to harmonize standards on prior art. For now, patent offices should formulate clear guidelines on the treatment of cyber art de lege ferenda to achieve quality patent examination processes, reduce processing time of patent applications and safeguard against patent infringement.