Internet prior art at the EPO: preserve the disclosure before it disappears

Why internet prior art is fragile

Under Article 54(2) EPC, the state of the art is everything made available to the public before the filing date, in writing, by use or in any other way. Web pages, online manuals, datasheets, forum posts, code releases and videos all qualify. In practice they are often the most relevant documents in an opposition, because companies show their products online long before anyone writes a journal paper about them.

The problem is that websites change. Pages are redesigned, PDFs are replaced by a newer revision, videos are deleted or made private. The opposition period runs nine months from the mention of the grant (Article 99 EPC), and appeal proceedings can last years. By the time the board looks at the citation, the URL in your notice of opposition may show something else, or nothing at all.

What the EPO has to be convinced of

The Guidelines (G-IV, 7.5) treat an internet disclosure like any other piece of evidence. The examining or opposition division has to establish two things: whether the date is correct, and whether the content was really made available to the public on that date. The standard is the balance of probabilities, confirmed by the boards in T 286/10 and T 2227/11: a mere possibility is not enough, but proof beyond reasonable doubt is not required.

• When: an explicit date on the page is generally accepted at face value, and the party disputing it has to show it is unreliable.
• What: exactly which content was online at that date, including figures, tables and the version of a document.
• Public: the page must have been available without a duty of confidentiality; a password or a paywall alone does not exclude it.
• Circumstances: in opposition, the division also weighs when the evidence was filed and whose interests it serves.

Doubts about an archived document go to its weight, not its admissibility (T 1698/08), and a general allegation that digital archives are unreliable is not enough to rebut them (T 286/10). Weight, however, is exactly what you lose when the only record is a screenshot pasted into a submission.

The lesson of T 3000/19: when the video is gone

In T 3000/19 (decision of 6 July 2022) an application had been refused on the basis of an internet video. By the time of the appeal the hosting page was no longer available, and the file contained screenshots and selected passages. The board set the refusal aside and remitted the case. Its headnote is the part every practitioner should remember: when a video retrieved from the internet is used as prior-art evidence, its content and the metadata showing when and how it was made public should be preserved and made accessible over time to interested parties and judicial bodies.

The board also drew on the Council of Europe Guidelines on electronic evidence in civil and administrative proceedings, which stress integrity, metadata and long-term accessibility. The message for opponents is simple: a URL and a few screenshots are not a preserved disclosure. The file itself, its metadata and the page that published it are.

Dating a disclosure that has no reliable date

If the page shows no date, or the other side shows that the date is unreliable, Guidelines G-IV 7.5.4 list the circumstantial evidence that can establish or confirm it:

• Internet archiving services, most prominently the Wayback Machine of the Internet Archive.
• Modification histories, for example wiki page histories or version control systems.
• Computer-generated timestamps in file directories, repositories, or automatically added to blog and forum posts.
• Search-engine indexing dates, which are later than the actual publication date.
• Dates hidden in the site's code, retrievable with forensic tools, provided it is explained how they were obtained.

If no date can be established, the retrieval date is too late to be prior art for the patent in question. That is why dating evidence has to be collected together with the content, while it still exists: archived snapshots can disappear too, and a repository history can be rewritten.

Checklist: what to capture for an opposition

Capture each disclosure as a set, not as a single page:

• The page as rendered, with the full HTML: hidden dates such as publication meta tags live in the source, not in the screenshot.
• The network record (HAR) with the server's response headers, plus DNS and the TLS certificate of the domain.
• Every linked file you rely on, such as a datasheet, manual or brochure, downloaded with its redirect chain, its size and hash, and the file's own metadata.
• For a video: the original file where the platform serves it, the page that published it, and the visible upload date, account and caption.
• The dating evidence: the Wayback Machine snapshot page, the release or commit page, the forum thread with its post date.
• The navigation path that shows the content was reachable by the public, not only via a private link.
• A short note of who captured what, when and with which tool; it will become your declaration if the date is contested.

What a qualified timestamp adds, and what it does not

A capture sealed with an eIDAS qualified electronic timestamp proves when you captured the material and that nothing in the sealed package has changed since. Under Article 41(2) eIDAS a qualified timestamp enjoys the presumption of the accuracy of its date and time and of the integrity of the data it is bound to, and Article 41(3) requires recognition in all EU member states.

Be precise about the limits. The timestamp does not prove the original publication date of a third-party page; that still comes from the dating evidence above. It does not prove the content is true. And the EPO is not an EU institution: it evaluates evidence freely, so the eIDAS presumption is a strong argument about integrity, not a rule that binds the division. What the seal does give you is a stable, independently verifiable record of the content and its dating evidence that cannot drift while the proceedings run.

That is precisely the gap T 3000/19 describes: content and metadata that stay accessible and checkable over time, by the other party and by the board.

The defensive side: seal your own publications on the day

The same logic protects patentees and companies that publish defensively. If you release a technical note, a product manual or a demo video to make a feature part of the state of the art, capture it on publication day. A sealed capture made that day, with a qualified timestamp, is far stronger dating evidence than an undated page that you have to reconstruct from archives years later.

For a public page, a server-side capture is useful here: it is retrieved by our infrastructure from the public internet, not from your logged-in device, which also documents that the page was reachable without credentials at that moment.

Which GetProofAnchor option fits

All three options seal the material with an eIDAS qualified timestamp from an EU qualified trust service provider, and can be verified offline with the open-source gpa-verify.

• Forensic Browser (Windows): browse the product pages, download the datasheet through the app and save the demo video, all in one session sealed as one package with one timestamp. The original video file is kept where the platform serves it, otherwise a labelled playback recording. Output as a PDF that validates in Adobe Acrobat Reader or a ZIP for experts. Licences from 290 EUR per year excl. VAT.
• Web app: capture a public URL or seal a file by URL with its hash, ETag and Last-Modified header; the 9 EUR pack (10.89 EUR incl. VAT) gives 3 proofs, monthly plans from 19 EUR excl. VAT.
• Assisted Capture: send us the URLs and we capture them for you, including video. Evidence Pack for up to 5 URLs 149 EUR excl. VAT (180.29 EUR incl. VAT) within 3 hours; Rush with a guaranteed 60 minutes for 249 EUR excl. VAT.

None of this guarantees how a division or board will weigh the evidence. It makes sure the disclosure you found is still there, unchanged and checkable, when they do.

FAQ

Sources

• EPC Article 54: Novelty (state of the art)
• EPC Article 99: Opposition (nine-month period)
• EPO Guidelines G-IV, 7.5.1: Establishing the publication date
• EPO Guidelines G-IV, 7.5.2: Standard of proof
• EPO Guidelines G-IV, 7.5.4: Disclosures with no date or an unreliable date
• Case Law of the Boards of Appeal III.G.4.2.4: archives and internet publications (T 286/10, T 2227/11, T 1698/08)
• T 3000/19 (Board 3.5.07, 6 July 2022)
• Council of Europe: Guidelines on electronic evidence in civil and administrative proceedings
• Regulation (EU) No 910/2014 (eIDAS), Article 41