A recent blog post by John Marlott at Jones Day brought to my attention a ruling from last fall by the Patent Trial and Appeal Board (PTAB) concerning the use of the Internet Archive Wayback Machine (IAWM) for patent prior art in the context of an inter partes review. While this use of IAWM is well-established, the ruling suggests that IAWM may not unto itself be sufficient to qualify as a "printed publication" for the purposes of establishing dated patent disclosures.

Specifically, the PTAB judge noted that the demonstrated historical public accessibility of a given web document, as substantiated by IAWM, only established that it was technically accessible; it didn't go to its "public accessibility" — i.e., its discoverability by, dissemination to, and/or circulation within the relevant community of practice. Here is the critical excerpt from the ruling, First Solar, Inc. v. Rovshan Sade, IPR2023-00827, Paper 13 at 18 (PTAB Nov. 16, 2023) :

"[T]he present case lacks any testimonial evidence that a person interested in solar trackers or solar panel assemblies would be independently aware of the web address for Wattsun or even of the company or its products. In other words, there was no evidence that the ordinarily skilled artisan would know of Wattsun or its web address. Nor does Petitioner offer evidence, or even argument, that Wattsun's webpage was 'indexed ... (through search engines or otherwise)' and thus locatable by a search engine."