Takeaway: Be sure to do an extensive search on the Wayback Machine when researching prior art for your potential patent application.

In a recent appeal from a rejection to a patent application (Ex parte Babek Ghalili and Kevin McGovern, Appeal 2020-001741, P.T.A.B. Aug. 3, 2020) involving an anti-wrinkle and aging product, the PTAB determined that a prior art reference shown to have been archived by the Internet Wayback Machine prior to the effective filing date of a patent application was accessible and thus available to serve as prior art.

The use of the Internet Wayback Machine is gaining steam in litigation. In this recent appeal for the skin-improving product, the PTAB has indicated that if a document in the Wayback Machine was archived prior to the effective filing date of a patent application, it can serve as prior art to the application. This may have implications for prior art searches in a litigation context, as well as potentially expanding the scope of prior art searches by patent examiners.