Nowadays, Internet evidence has been more widely used by parties in both the administrative process of patent invalidation and the judicial process of patent infringement disputes, which leads to significant credibility problems facing patent examining authorities and courts. The most prominent feature of Internet evidence is that digitalized alteration can be made without a trace. Thus, the difficulty in the credibility problem lies in determining whether such internet evidence has been tampered with. With respect to the motive of tampering, what should be taken into account is the interest relationship between the website and the party, as well as the management mechanism of the website.

 

 

In the case of patent invalidation (see the Patent Invalidation Request Examination Decision No. 6596 of the Patent Reexamination Board, the Judgment Yizhongxingchuzi No. 1393 (2006) of the No. 1 Intermediate People’s Court of Beijing, and the Judgment Gaoxingzongzi No. 245 (2006) of the High People’s Court of Beijing), the invalidation requester offered three notarized documents as evidence.

The documents certify that the public notary accessed the MKTOYS website (http://www.mktoys.com), with which neither party of the case is affiliated, on November 12, 2003, November 24, 2003 and December 15, 2003, to conduct searches for the pertinent toys and printed out the search results. According to them, when Item No. MK0314271 was entered as a keyword and the Date was set to be within N days (which is before the application date of the patent at issue), the search engine returned a record named the “Window Box Type Electric Musical Bicycle 8808”; and if the Date was set to be N-1 days, the record was not found. The applicant claimed that the three notarized documents proved that the “Window Box Type Electric Musical Bicycle 8808” had been disclosed on the Internet before day N. This article will discuss general principles in evaluating the credibility of Internet evidence with circumstantial evidence, and their application in the practice of patent examination and court.

 

By far, the Patent Reexamination Board has had different opinions on the credibility of Internet evidence. Some decisions hold that in the absence of other probative evidence, the board cannot make an evaluation of the credibility of Internet evidence and will not admit it. Others viewed Internet evidence as inadmissible because in reality, internet evidence may easily be tampered with, and the information obtained on the Internet is extremely unstable. Still others found it to be inadmissible because the downloaded web pages are in the nature of photo reproductions. Different opinions can also be found in the judgments of courts regarding the credibility problem of Internet evidence.

 

 

The fundamental problem with Internet evidence lies in the tracelessness of digitalized tampering.

 

Internet evidence is digital. Through the Internet interface layer, information is transformed into sequences of binary codes of 0 and 1, which are logical signals. The formation, storage, transmission, collection and expression of Internet evidence are centered on such sequences. The formation is the process that a computer transforms information into a sequence of binary codes. The storage, transmission, and collection are processes to store, transmit and collect the sequence. The collection is the process that a computer transforms the sequence into the information according to certain rules. These are what other evidence lacks. Therefore, digitality is the fundamental characteristic expression of Internet evidence and because of this, Internet evidence is classified as a single kind of evidence.

 

Internet evidence can be tampered with without a trace, because it is digital. When an artificial factor or a technical malfunction interferes, the sequence of binary codes, which constitutes Internet evidence, can be changed or deleted. In computerized systems, internet evidence uses electric, optical or magnetic media as vehicles of information, and if information is changed or deleted on such vehicles, it will be untraceable. Therefore, without effective administrative or technical approaches, generally one can hardly find if it has been changed or deleted. This is another fundamental characteristic of Internet evidence

 

 

Because fundamentally Internet evidence is digital and can be modified without a trace, the main difficulty in authenticating it is to determine if it has been changed. The determination may be made by considering both subjective and objective aspects, and by analyzing the motive and technical feasibility of modification. If the motive and the technical feasibility are established, it may be presumed that the Internet evidence concerned has been modified and is not authentic.

 

Regarding the motive, main considerations should be given to the interest relationship between a website and a party, and the management mechanism of the website. Regarding the probability of modification, it should begin with the basic technologies, with integrated considerations to the expression, formation, storage, transmission and reception, collection, and completeness of the Internet evidence.

 

If it can be presumed that the Internet evidence has been modified, and if the opposite party produces reasonable counter evidence, further considerations should be given to the following: the content recorded in server log files; the certification by Internet service providers; the content certified by certification authorities; the content marked by digital object identifiers; and the search results returned by search engines.

The management mechanism is an attribute of the website, which may influence the authenticity of Internet evidence. It depends mostly on the following five elements: the interactivity of the website, the reliability and stability of the system, the examining and recording mechanism, the access control mechanism, and the discipline and recognition mechanism for false information.

 

The interactivity of a website means how data is exchanged between the website and the users. The system administrator or column supervisor posts the information of a static website or the static information of a dynamic website, when the poster who posts the information seldom or never needs to change the information he has posted. This Internet evidence is more authentic.

Internet users put in the dynamic information of a dynamic website, and this Internet evidence is less authentic. The reliability and stability of a website system means whether the hardware, software and firmware of the website system are stable and function normally. If the hardware system has never malfunctioned or if a perfect log system and a complete backup system are available, the software system will run in a reliable manner. The examining and recording mechanism means how the administrator examines the contents on the website and how the log system records the actions of Internet users. If the website has a perfect examining system where the system administrator or column supervisor examines dynamic information, a good log system which records every action of Internet users, and a strict mechanism for modification of posted information, where, for example, the website data can only be modified by high-level administrators and each and every modification is logged, then the Internet evidence of the website is more authentic.

 

The access control mechanism means that different roles have different access to a website, which shows how the website data can be modified and how difficult it is to modify it. If a website is strictly controlled with the access distribution mechanism well developed, the Internet evidence of the website is more authentic. The discipline and recognition mechanism for false information means that a poster who posts false information will have the risk of being discovered and subject to disciplinary actions. If it is very likely that false information will be discovered and verified by consumers, and if such false information, once found, will have great adverse impact on the poster, the Internet evidence of the website is more authentic. On Taobao (www.taobao.com), for example, an Internet user can easily discover any false information on the shape, size or color of a product, and may adversely influence the future of the seller by rating it low through a credit rating mechanism.

The interest relationship mainly refers to any special relationship, such as contractual relationship, technical cooperative relationship or sponsorship, between a website and a party of a case.

If the website is an independent website and does not have any interest involved with the parties in the invalidation procedure, the evidence of the website is more authentic. If a party in the invalidation procedure has any interest in the website, who is, for example, a sponsor or advertiser of the website, the evidence of the website is less authentic.

The expression of Internet evidence mainly means how the Internet evidence exists. Internet evidence is essentially some data existing in a magnetic or optical medium, and must be expressed, through a special electronic device, so that humans can perceive it. For this sake, the incorporeal Internet evidence must be fixed in certain manners. If it has a formal and fixed expression, it is more authentic. If the expression is informal or can be easily changed, the evidence is less authentic.

The formation of Internet evidence means the formation of messages as evidence. In the formation, there are three elements to consider the creation of original data of the message; the reliability of the computer system or other similar devices upon which the Internet evidence relies; and the date/time that the expression of the Internet evidence is made.

 

Regarding the creation of original data of the message, it should be considered mainly whether the message is created automatically by a computer application in the regular business process, or put in artificially. Regarding the reliability of the computer system or other similar device upon which the Internet evidence relies, it should be considered mainly whether such computer system or other similar device functions normally at the critical moment concerned. If such computer system or other similar device malfunctions at the critical moment, it should also be considered if the fact influences the truthfulness of the electronic record. Regarding the date/time that the expression of the Internet evidence is made, we should mainly consider if it is made in the normal business process or specifically for the invalidation procedure or the civil action. If it is made in the normal business process, the evidence is more authentic.

The storage of Internet device means the storage of messages as evidence. Regarding the storage of messages, the following four elements should be considered, namely, storage method, storage medium, storage maker and encryption. First, whether a scientific method is used to store the messages. Second, whether a reliable medium is used to store the messages. If a permanent storage medium is used, the evidence is more authentic in the case of a volatile storage medium, the evidence less authentic. Moreover, it should be considered whether the stored messages are encrypted. The stronger the encryption is, the more authentic the evidence.

The transmission and reception of Internet evidence means how the messages, as evidence, are transmitted and received. Regarding the transmission and reception, the following three elements should be considered, namely, the data transmission methods adopted, the data encryption technologies used, and the status of the service provider. Whether a scientific and reliable technical approach or method is adopted to transmit or receive the messages; whether the service provider who delivers the messages is fair and independent; and whether a scientific encryption technology is used in the transmission of the messages.

Regarding the collection of Internet evidence, it should be considered who collects it and how it is collected, that is, the identity of the collector, and whether the collector has any interest in the case. If the collector is a stakeholder of the case, the Internet evidence it collects is less authentic. The evidence obtained through a public notary is more authentic. Moreover, the following should be considered: whether a judicial organ complies with relevant legal provisions when collecting Internet evidence; whether a judicial organ is authorized and follows the legal procedure of obtaining secrete evidence, when collecting Internet evidence in secret ways; whether the method used to collect Internet evidence (by creating a backup or printing it out, for instance) is sound and reliable; and what standard the collector follows and what scientific and reliable methods it uses in reorganizing and selecting/deselecting messages.

The completeness of Internet evidence mainly concerns with the completeness of the evidentiary content. If the computer hardware that a website has to process matters and data complies with the relevant national standard, the Internet evidence of the website is more authentic. If the computer hardware that a website has to process matters and data is of so poor quality that data cannot be accessed when it is saved or extracted, or has to be modified before it can be accessed, the messages of the website are less complete. The Internet evidence of the website is less complete and less credible.

 

 

A party may provide the following evidence to support authentic Internet evidence.

Generally, a website has log files to record all the actions on the website server. Therefore, the log file can reflect if the Internet evidence is modified. If a party provides a log file that has been obtained through a notary public or other legal means, and if the opposite party does not file evidence to the contrary, such log file is admissible to prove that the Internet evidence concerned has not been modified.

Generally, if a party provides the testimony of an administrator of a website, whether in the name of the website or an individual employee, and if the party cannot be proved or reasonably doubted to have any interest in the website, such testimony is admissible to prove that the Internet evidence concerned has not been modified.

If Internet evidence can show the time stamp of the web page concerned, and if no counter evidence is submitted, it can be accepted that such Internet evidence reflects the condition of the web page concerned at the time of the time stamp.

The real-time snapshots by web crawlers can prove if a web page is authentic and when it is posted. For example, by using such famous search engines as Google or Baidu, it can be determined that the web page concerned is not returned by the search engine on the N day, but on the N+1 day. If without counter evidence, it can be established that the Internet evidence was published on the N+1 day and has not been modified since the day.

 

 

Now, the author will analyze the case at the foremost of this article using the above principles.

 

First, an analysis of the subjective aspects. In terms of management mechanism, MKTOYS is a website in the category of corporations and private schools. It has a loose examining mechanism and generally will not strictly examine any postings. Because it is not a dynamic website, the supervision rests with the system administrator and the interactivity of the website is weak. In addition, with respect to the basic structure and profile of the website, it has mechanisms to ensure the storage, transmission and reception, collection and completeness of the Internet evidence. Therefore, in the authentication of the Internet evidence, next consideration should be given to the interest relationship between the website and the parties to the action.

 

In this respect, MKTOYS is a website that MKTOYS Co., Ltd. has set up, maintains and operates independently, which mainly provides customers with searching and ordering services of toys. MKTOYS does not have any interest in the parties to the action. From the above subjective analysis, it can be deduced that MKTOYS does not contain the motive to change the related web page on its own initiative.

 

Second, an analysis of the objective aspects. With respect to the expression of the Internet evidence, one of the parties provided the notarial certificates, which are printouts of the web pages, with notes on the downloading process of the web pages. Although Internet evidence is digital in form and its expression can be informal or easy to change, the printouts as Internet evidence are complete to indicate what the web pages showed when the notarization was made. Moreover, the notes of the notarial certificates on the downloading process can prove the source of the Internet evidence. In addition, the notarial certificates prove that the hard copies were consistent with the web pages when they were printed. Therefore, preliminarily the authenticity of the Internet evidence can be admitted.

 

With respect to the formation, storage, and transmission and reception of the Internet evidence, MKTOYS Co., Ltd. who maintains the MKTOYS website generated the original data of the messages as the Internet evidence. Moreover, the data was stored at the database of the website server of MKTOYS, and transmitted and received in a message format complying with the TCP/IP protocol. With respect to the collection and completeness of the Internet evidence, it was collected by the notary public complying with the notarization procedure and is complete.

 

With consideration to all the above factors, if without counter evidence from the opposite party, the Internet evidence should be determined as authentic.

 

 

This article begins with the technical features of Internet evidence and finds its characteristics. It goes on to analyze the difficult points in authenticating it. From the difficult points, it argues that to determine if it has been modified, one should consider both the subjective and objective aspects, that is, the motive and technical feasibility of modification. Regarding the motive, mainly the interest relationship between a website and a party, and the management mechanism of the website should be considered. Regarding the probability of modification, it should begin with the basic technologies as a logical starting point, with integrated considerations to the expression, formation, storage, transmission and reception, collection, and completeness of Internet evidence. Finally, the article analyzes how the elements can be applied in the specific case concerned, with the hope to help with the practice of patent examination and court judgment.