Expert Analysis and Statement of a European Patent Attorney on Proofbox

At Proofbox, technical compliance and global findability are at the core of what we offer. To further validate our publishing process, we commissioned a comprehensive expert analysis by a representative before the European Patent Office. The goal: to assess whether a technical disclosure published via Proofbox meets the criteria to qualify as prior art. This approach acknowledges that legal recognition is ultimately subject to case-specific judicial review.

The analysis focused on whether defensive publications made through Proofbox meet the formal and practical requirements to be accepted as valid prior art.

We are proud to share this in-depth analysis below.

Expert Opinion on Proofbox Disclosures

The evaluation of online publications with respect to their suitability as prior art under the European Patent Convention (EPC) and U.S. patent law requires a nuanced analysis of the underlying technical and formal conditions. Proofbox enables users to upload a technical document into a publicly accessible, web-based archive. Each document is timestamped via a qualified eSeal, gehashed, published with a unique URL, and monitored for permanent availability. Access to the information is thus ensured not only formally but also in practice.

According to Art. 54(2) EPC, the state of the art comprises everything made available to the public before the filing date. Consistent case law, in particular decision G 1/92, clarifies that an item is made available to the public if there was no confidentiality obligation and a person could access the information using ordinary means.

The EPO Guidelines confirm that online publications can constitute prior art, provided the publication date is verifiable. Section G-IV, 7.5 states that even content behind a paywall may be considered public if access is generally available. The key requirement is that access is open to anyone willing to pay. This applies to the Proofbox model.

The challenge lies in proving the time and immutability of the publication. The EPO emphasizes the need for credible proof of the publication date. In the case of Proofbox, the publication date is proven by a digital and qualified timestamp. These timestamps are eIDAS-compliant and meet European requirements for qualified electronic time evidence. This practice complies with ISO/IEC 18014 and forms the basis for a reliable chain of custody.

Moreover, the eSeal embeds the hash value, enabling traceability of changes. Availability is monitored server-side and recorded in a log. Each publication is findable through search engines, fulfilling the public accessibility requirement referenced in decision T 2/09.

Under U.S. patent law, according to MPEP § 2128, online publications must be both publicly accessible and permanently available. Proofbox provides a robust level of documentation by U.S. standards through eIDAS-compliant timestamping and SEO optimization. Ultimately, a U.S. court or the USPTO would determine if the authentication and accessibility requirements are met in a specific dispute.

Additionally, the Unified Patent Court (UPC) follows the EPC in substantive law. Electronic documents are admissible as evidence if their authenticity can be demonstrated. The combination of compliant timestamps and documented public availability suggests that a Proofbox publication would be admissible as evidence.

In summary, the technical and organizational measures implemented by Proofbox are suitable to produce an online publication that can qualify as prior art. This is conditional on consistent proof of the publication date and content. Based on existing case law, technical recognition of such a publication as prior art is likely. Proofbox's measures are aligned with these standards, though ultimately subject to case-specific scrutiny.

Notice

Due to professional regulations, the identity of the expert cannot be disclosed publicly. If you wish to discuss technical aspects of prior art recognition, please contact us via our contact form. We will be happy to connect you with the expert behind this analysis.