In the final decisions issued on September 18, 2014 for two related proceedings, the Patent Trial and Appeal Board considered motions to exclude evidence involving webpage printout documents from Wikipedia and Webopedia. See SAP America, Inc. v. Lakshmi Arunachalam (CBM2013-00013, Paper No. 61, pp. 27-29) and SAP America, Inc. v. Lakshmi Arunachalam (IPR2013-00194, Paper No. 67, pp. 33-34). In the two proceedings, a Wikipedia article titled “Web application” was used by the patent owner to help define what the term “Web application” means for claim construction purposes, and a Webopedia article titled “The Difference Between the Internet and World Wide Web” was used to support the patent owner’s distinction between the terms “internet” and “world wide web”. The petitioner moved to exclude these webpage printout documents along with other documents, arguing that these documents are unauthenticated and that a statement by the inventor that each of the documents is a true, authentic, and correct copy of the original document is insufficient for authentication.
The Board cited to the Federal Rules of Evidence and stated that, under FRE 901(b)(4), a party may authenticate evidence using circumstantial evidence in conjunction with the appearance, contents, substance, internal patterns, or other distinctive characteristics of the evidence. The patent owner pointed to dates, websites, trademarks, copyright notices and URL links as the circumstantial evidence, but the petitioner argued that these indicia do not sufficiently authenticate the documents. The Board stated that although the patent owner has not provided evidence such as hash values or metadata (generally accepted methods for showing that the electronically stored information is indeed what one claims it to be), “the contents and substance of the documents indicate that they are what they purport to be” and “[g]iven their technical nature of the documents, this panel can assign them appropriate weight”. See Paper No. 61, p. 28. The Board also pointed out that the declarant inventor was subject to cross-examination on the exhibits. See Paper No. 67, p. 34. The Board noted that it could exercise its discretion to assign appropriate weight to the evidence. Thus, the Board denied the petitioner’s motions to exclude, and proceeded to consider the documents and assign them appropriate weight.
While these decisions consider the admissibility and relevancy of webpage printout documents as evidence in a post-grant proceeding context, the Board has considered this issue before in ex parte appeals. In Ex Parte Daum (Appeal No. 2011-012714, pp. 12-13), the Board stated that “Wikipedia, as a website, can be an ‘unreliable source of information’ for purposes of resolving legal disputes, because (1) it is not peer reviewed; (2) the authors are unknown; and (3) apparently anyone can contribute to its content” (citing Ex parte Mandy, No. 2011-000015, Application No. 10/537,714, 2013 Pat. App. LEXIS 3163 (Pat. App. May 23, 2013) (“We give minimal weight to Appellant’s citation of a Wikipedia entry”); Ex parte Bailey, No. 2010-010310, Application No. 11/168,650, 2013 Pat. App. LEXIS 2470 (Pat. App. Apr. 25, 2013) (“Wikipedia has limited probative value in view of its dubious reliability. Among other things, Wikipedia is not peer reviewed, the authors are unknown, and apparently anyone can contribute”); Techradium, Inc. v. Blackboard Connect Inc., 2009 WL 1152985, at *4 n.5 (E.D. Tex. 2009) (“The Court agrees with Blackboard that Wikipedia disclaims any validity of the content listed on its website, and is therefore not a reliable source of technical information.”); see also Bing Shun Li v. Holder, 2010 WL 4368469 (5th Cir. 2010) (unpublished), at *2 (noting Wikipedia’s unreliability and citing Badasa v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008)).
In these two proceedings, several documents other than the Wikipedia and Webopedia articles were also provided as evidence for claim construction purposes. Thus, since a statement by the inventor that each of the documents is a true, authentic, and correct copy of the original document was provided and the inventor was available to be cross-examined on the documents, the Board may have decided to allow these documents to be considered as useful supplementary evidence especially since it emphasized their “technical nature”. However, given the Board’s past skepticism of the reliability of Wikipedia articles as evidence, one may wonder whether the Board would have treated such webpage printout documents differently if they were relied upon as the sole evidence in the patent owner’s arguments.