I. Introduction

The Internet, as a core medium for information dissemination, has become an indispensable source of prior art in patent invalidation procedures. However, some online evidence may face the dilemma where its content is sufficient to assess the novelty or inventive steps of a patent, but is nonetheless not accepted due to insufficient website credibility or an unverifiable publication date.

In August 2025, the CNIPA published a compilation of key points from typical patent reexamination and invalidation case decisions for 2024. Among them, the key point from the invalidation decision No. 569325 (hereinafter referred to as “Case 1” ) is “Determination of the Publication Date for Webpage Archives in the ‘Internet Archive’” , which extensively discusses the nature and archiving mechanism of the website “Internet Archive” and its service “Wayback Machine,” and analyzes how to determine and use archive dates of webpages crawled by the Internet Archive as the publication dates of the crawled webpages.

Furthermore, several months ago, the Supreme People’ s Court issued a second-instance judgment in an administrative litigation appeal case, rejecting the patentee’ s appeal and upholding the first-instance judgment. In the challenged decision (InvalidationDecision No. 58954, hereinafter referred to as “Case 2” ) involved in this appeal, the CNIPA acknowledged the publication date on the 3GPP email exploder (LISTSERV) as the publication date for the email attachment.

The prior art references used in these two cases (especially Case 2, which involves a Standard Essential Patent (SEP)) and the means to prove their publication dates were unconventional choices. How to prove the public accessibility and publication dates of the core evidence in both cases was a focal point of dispute. In Case 1, the panel even held a second oral hearing specifically to determine the evidence’ s publication date. 

This article focuses on the aforementioned two cases, exploring the mechanisms of archiving websites like the Internet Archive and 3GPP LISTSERV to summarize their commonalities and abstract general requirements. The goal is to provide new insights and guidance for evidence selection and determining publication dates in patent invalidation practice.

II. Requirements and Analysis for Using Archiving Websites to Date Webpage Evidence

The core rationale in both cases above is to use neutral archiving websites to enhance the credibility of the original webpage evidence, and use the archive dates from the neutral archiving website as the publication dates for the referenced evidence. The author summarizes the applicable requirements for using archiving websites to date webpage evidence, as follows:

• Neutrality of the Website: The archiving website must be neutral.
• Automaticity of Archiving: The archiving mechanism must be automatic with a fixed timestamp.
• Public Accessibility: The content must be publicly accessible from the archive date.
The following sections first introduce the evidence from both cases, then analyze it against each requirement.

1. Case Introductions

Case 1: Invalidation Decision No. 569325 ( “Multi-function Purifier” ) in the compilation of key points from typical patent reexamination and invalidation case decisions for 2024. 

In this case, the petitioner submitted notarized archived webpage content (including text and images) from the Internet Archive as Evidence 2, to challenge the inventive steps of the patent in suit. A key point of dispute during the cross-examination was whether the date

associated with the relevant webpage archive in the “Internet Archive” in Evidence 2 could be used as the publication date, and if so, how to determine the evidence’ s publication date when the archive times for images on the webpage and the webpage itself differed.

Following a second oral hearing, the panel acknowledged the Internet Archive’ s neutrality and, based on its archiving mechanism, ruled that the archive dates could serve as the publication dates for the relevant archived pages. It further held that differing archive dates for a webpage and its embedded images were not contradictory and should be treated as their respective publication dates. Consequently, the panel invalidated several patent claims based on Evidence 2 and other prior art.

Case 2: Invalidation Decision No. 58954 ( “Method for Configuring Link Maximum Transmission Unit in User 
Equipment” )

In this case, the petitioner submitted prior art reference 1, a notarized record of an email attachment from the 3GPP LISTSERV, to challenge the novelty and inventive steps of the patent in suit. The dispute in this case centered on how to characterize the email archiving mechanism of the 3GPP LISTSERV and whether the upload date of an email in the 3GPP LISTSERV could be considered the publication date for the email and its attachment. Ultimately, the panel also acknowledged the automatic archiving mechanism of the 3GPP LISTSERV and determined that its archive date could serve as the publication date for the email and its attachment.

2. Analysis of Requirement One: Neutrality of the Website 

The foregoing case descriptions reveal that the original evidence in Case 1 suffered from low credibility, as content from lesser-known websites is inherently vulnerable to post-facto tampering. In Case 2, the evidence posed an even graver challenge regarding public accessibility. Due to the private nature of emails, even those within a mailing list with multiple members, the limited nature of the membership raises questions about whether they constitute a public disclosure under patent law.

Therefore, when using a neutral archiving website to enhance the credibility of original webpage evidence, the first key point is that the archiving website itself must possess a high degree of neutrality and credibility to lend authority to the original webpage. Regarding this point, the reasoning in the panels’ decisions for the two cases is as follows:

Case 1: The Internet Archive (web.archive.org) is a non-profit digital library organization outside China, providing permanent free storage and access to digital data such as websites, music, moving images, and millions of books. Its data is automatically collected by its own web crawlers. The Wayback Machine is one of the Internet Archive’ s most important services, allowing people to search and access its web archives.

Case 2: Upon verification by the panel, 3GPP, fully named the 3rd Generation Partnership Project, was established in December 1998... The 3GPP organization has a well-established email list distribution mechanism. Different TSGs, WGs, Study Items (SIs), and Work Items (WIs) can have dedicated mailing lists. Anyone interested in a specific TSG, WG, SI, or WI can track relevant progress by subscribing to the corresponding mailing list. Links to this mailing list interface are also available on the official 3GPP website. 
Consequently, the Internet Archive and 3GPP LISTSERV are both characterized by their substantial scale, high industry recognition, and strong neutrality. These characteristics collectively form the foundation of their reliability as information sources, resulting in high overall website credibility.

3. Analysis of Requirement Two: Automaticity of Archiving 

If “neutrality” is the foundation of an archiving website’ s credibility, then “automaticity” is the core technical guarantee ensuring the objectivity, authenticity, and freedom from human intervention of its archive dates. The automaticity demands that the archiving website uses preset, automated procedures without human intervention (such as web crawlers, automatic crawling mechanisms) to capture and save content. This automated mechanism largely eliminates the possibility of human tampering, selective archiving, or falsification of archive times during the archiving process. Consequently, the generated archive date possesses high credibility and can be adopted as the legal publication date. Regarding this point, the reasoning in the panels’ decisions for the two cases is as follows:

Case 1: Based on an understanding of the Internet Archive’ s archiving mechanism, it uses web crawler software programs to browse the web and automatically save backups of website files. It is a website that regularly searches, archives, and provides public access to information from various public websites in the manner of a digital library, with over 20 years of web archives accessible. The Internet Archive assigns a URL to each webpage file it crawls and archives, and records the webpage crawl/archive time. However, elements such as images within the webpage can be crawled multiple times separately, with their respective crawl times recorded. Therefore, the crawl times for the webpage displayed by the Internet Archive and the images or other elements contained within it are not necessarily consistent.

Case 2: For documents of the 3GPP TSG RAN WG3 discussion group, when a sender sends and uploads an email and its attached document to the LISTSERV server, the system server automatically archives the email in a list format. The corresponding email then appears in the mailing list of the aforementioned discussion group. Then, all users accessing the website can access the LISTSERV mailing list to obtain the content discussed in the relevant email group, find the corresponding email and document, and download them. Simultaneously, the server sends the email and document to subscribers registered for the corresponding discussion group on the website. Given the neutrality of the email system developer and the nature of the 3GPP organization’ s website, the send/upload time of the email displayed in this mailing list can be considered the time when the email was archived and began to be in a state publicly available for browsing.

For Case 1, the Internet Archive’ s crawlers regularly and continuously traverse publicly accessible webpages globally, automatically capturing and saving snapshots based on preset rules without human intervention. It is this thorough automation that convinced the panel that its archive date truly reflects the state where the webpage was publicly published and accessible by search engines at that time. 

Similarly, in Case 2, the LISTSERV system automatically distributes and archives emails to a public web archive upon submission. This immediate, software-triggered process ensures the upload date is a server-generated timestamp, not editable text, thereby providing an objective basis for determining the publication date.

4. Analysis of Requirement Three: Public Accessibility

The neutrality and automaticity of the archiving website, and the archive date it generates, must ultimately serve a fundamental legal objective: proving that the relevant information was in a state accessible to the general public from the archive date onwards. Regarding this point, the reasoning in the panels’ decisions for the two cases is as follows:

Case 1: The Wayback Machine is one of the Internet Archive’ s most important services, allowing people to search and access its web archives. Although the Internet Archive website content is currently inaccessible within China via ordinary user terminals, this does not affect the use of the website’ s public content by the petitioner to prove prior art predating the patent’ s filing date, which complies with the aforementioned provisions of the Patent Law.

Case 2: Given the neutrality of the email system developer and the nature of the 3GPP organization’ s website, the send/upload time of the email displayed in this mailing list can be considered the time when the email was archived and began to be in a state publicly available for browsing. Based on the aforementioned email distribution mechanism, Reference 1 was sent and uploaded to the LISTSERV server on “March 21, 2007” , from which the email containing Reference 1 had entered the server. Any user visiting the website could view the document in that email within the TSG_RAN_WG3 discussion group of the LISTSERV mailing list. Simultaneously, subscribers to the TSG_RAN_WG3 discussion group would receive the corresponding email in their own mailboxes. In other words,unspecified persons could view and download Reference 1, which was sent and uploaded to the LISTSERV server on March 21, 2007, and it was also accessible to unspecified discussion group subscribers.

In Case 1, the Internet Archive’s “Wayback Machine” service is fully open to global internet users, requiring no registration or permission review. Anyone, from anywhere, can search and view the webpage snapshots it captured in the past. In Case 2, the panel verified that public links exist on the 3GPP official website pointing to the LISTSERV interface. These phrases, “anyone” and “any user visiting the website”, clarify the non-specific nature of the accessing entities, and the public links on the official website provide convenient access. Therefore, the date an email was received into the list is the date its content was uploaded to this public platform and made available for consultation by the general public.

III. Conclusion

Focusing on recent cases, this article has analyzed the feasibility and examination standards for using neutral third-party archiving websites like the Internet Archive and 3GPP LISTSERV to date non-patent literature. For patent practitioners, when dealing with diverse online prior art evidence from various sources and in various forms, a three-step analysis path can be followed: (1) assess the credibility and neutrality of the website entity; (2) investigate whether its archiving or publication mechanism is automatic and tamper-proof; and (3) confirm whether the information was accessible to the general public from the archive date onwards. It is hoped that this article can provide practitioners with an operable, requirement-based analysis path when encountering similar issues of proving publication dates using other archiving websites.