Wynn W. Coggins — the PTO’s Chief Examiner of eCommerce patent applications — recently published a useful article about how her art unit deals with electronic prior art. The following are some highlights.
Internal documents intended to be confidential are not "printed publications" and are unavailable for use as prior art. This is regardless of how many copies are distributed. Additionally, note that "[w]hile distribution to government agencies and personnel alone may not constitute publication...distribution to commercial companies without restriction on use clearly does." Garrett v. US., 422 F.2d 874 (Ct. Cl. 1970).
An electronic publication, including an on-line 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. Thus, "whether information is printed, handwritten, or on microfilm or magnetic disk or tape, etc., the individual who wishes to characterize the information as a printed publication...should produce sufficient evidence of its dissemination or that it has been otherwise available and accessible to persons concerned with the art to which the document relates..." Wyer, 655 F.2d 227, Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228 (W.D. Wash. 1999).
Web Pages Must Be Static:
Prior art disclosures on the Internet or in an on-line database are considered to be publicly available as of the date the item was publicly posted. This is provided that the item is dated and not temporal, and can be indexed for subsequent retrieval. An example of a temporal item is a web broadcast that cannot be saved, retrieved or printed, e.g., a live simulcast feed that is not archived, and a "streaming" audio or video that "flashes" across the screen.