WikiTrial: Patent Trial and Appeal Board finds Wikipedia & Webopedia Entries Properly Authenticated In Patent Dispute

Federal Rule of Evidence 901(a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, how does a party authenticate a web page purported to be from Wikipedia or Webopedia? Let’s take a look at the recent opinion of the Patent Trial and Appeal Board in SAP America, Inc. v. Lakshmi Arunachalam.

Lakshmi Arunachalam, involved the question of whether the subject matter of the patent owner’s ‘158 patent was in fact patentable. That patent purported to provide “a method and apparatus for providing real-time, two-way transactional capabilities on the Web.” Moreover according to the patent specification, “[a] ‘transaction’ for purposes of the present invention includes any type of commercial or other type of interaction that a user may want to perform.”

In addressing this question, the Patent Trial and Appeal Board had to decide whether to allow the patent owner to admit evidence that was purported to be from website such as Wikipedia and Webopedia Here is the Board’s discussion of the issue:

Petitioner moves to exclude certain documents as not authenticated or hearsay….Specifically, Petitioner argues that we should exclude Exhibits 2014–2016, and 2018, (web pages purported to be from Webopedia and Wikipedia), and Exhibit 2019 (purported to be from webtrends.about.com), as unauthenticated and hearsay (id. at 1–4), and as irrelevant (id. at 5–6), because they post–date the relevant time period, i.e., November 13, 1995. Patent Owner opposes, citing case law where, based on the characteristics of the website, courts have held such documents to be sufficiently authenticated….Patent Owner also argues that the exhibits are relevant because they are offered for purposes of claim construction and that post-dated references may be cited to show the state of the art at or around the time of the invention….

And here is the Board’s analysis of the issue:

Under Federal Rules of Evidence (“FRE”) 901(b)(1) a proponent may authenticate evidence through testimony that the evidence is what it is claimed to be. In Loraine v. Markel American Insurance Co., 241 F.R.D. 534, (D. Md. 2007), the court noted that a witness authenticating electronic evidence must “provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so.” Id. at 545. The inventor’s statements do not meet these criteria. However, 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. Although Patent Owner has not provided evidence such as hash values or metadata (see Lorraine at 547), the contents and substance of the documents indicate that they are what they purport to be. Given their technical nature of the documents, this panel can assign them appropriate weight.

Huh? This is a very cursory analysis for a very complicated issue. The Board doesn’t explain the contents or substance of the documents. Nor does it explain how Wikipedia and Webopedia pages have a “technical nature.” Really, there’s nothing whatsoever in the Board’s opinion that leads to a conclusion that the Exhibits were sufficient distinctive to qualify for admission under Rule 901(b)(4). For a contrary analysis, consider Strepka v. Jonsgaard, 2011 WL 2883375 (D.Colo. 2011):

As a condition precedent to admissibility, Fed.R.Evid. 901 requires authentication or identification with “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Plaintiff has offered no evidence to suggest that Exhibits 13, 14, 16 and 21 are what he claims them to be. Exhibits 13, 14, 16 and 21 are not authenticated or sufficiently identified, and contain no facial indicia of reliability. See Jaramillo v. R & S Steel, Inc., 10–cv–00346–REB–BNB, 2011 WL 662778, at *3 (D.Colo. Jan. 20, 2011). Notably, “Wikipedia” is admittedly “the free encyclopedia that anyone can edit.” See http://en.wikipedia.org/wiki/Main_Page, last visited June 22, 2011.

-CM