Declaration on Long-Term Availability

1.1 The state of the art comprises everything made available to the public before the relevant date of a later disclosure or patent application. What matters is the possibility of taking notice, not actual notice. The requirements in detail are governed by the applicable legal system.

1.2 Where a disclosure is relied on later, the burden of presentation and proof lies with the party relying on it. What must be shown is:

a) Findability: that the disclosure was publicly accessible and could be found under the keywords relevant to its content;

b) Provability of findability: from which point in time and over what period this was the case, verifiable years afterwards as well;

c) Integrity: what content the disclosure had and that this content has remained unchanged since;

d) Proof of time: at which point in time that content existed, resting on a time source controlled neither by the publishing party nor by Proofbox.

1.3 This declaration sets out the arrangements Proofbox makes in respect of these four points, the period over which a publication is kept publicly available, and which means of proof remain available to the user permanently and independently of Proofbox.

2.1 For each publication, three means of proof are available to the user, which the user can keep. The sealed document under clause 2.2 and the DOI under clause 2.4 are independent of Proofbox continuing to exist. The availability report under clause 2.3 is provided through the user account; from the point at which it is retrieved it remains with the user and is likewise usable independently.

2.2 Sealed document: Every publication bears a qualified electronic seal with a qualified time stamp under Regulation (EU) 910/2014, with long-term validation. A SHA-256 check value of the document is embedded in the seal, so that later changes to the document become detectable. The qualified certificate is provided by an external qualified trust service provider. The document can be verified in Adobe Acrobat and Adobe Reader without further configuration, as those programs follow the European trusted lists. Verification is carried out offline and irrespective of whether Proofbox still exists at that time.

2.3 Availability report: Proofbox checks at regular intervals whether the publication is publicly retrievable and records every check. The report is available to the user through the user account at the publication concerned. It is first provided a few days after the day of publication. Clause 3 contains the particulars.

2.4 DOI ("Digital Object Identifier"): Every publication receives a persistent identifier under ISO 26324. A metadata record is deposited for it with the registration agency Crossref under its schema as "posted content". It comprises the DOI, the title, the authors (where stated, otherwise "Anonymous"), the date of publication, the abstract, the permanent address of the publication, the licence and the publishing entity. The metadata record is kept with the registration agency and not with Proofbox; it is publicly queryable and remains in place.

2.5 It is in the user's own interest to download the sealed document after publication and to file it with their records on the matter concerned. The DOI is stated on the title page of the sealed document. The availability report should be retrieved at regular intervals, expediently once a year, and filed in the same way.

3.1 Proofbox retrieves the address of the publication (a unique URL per publication) at regular intervals, usually daily and at a randomly chosen time, without logging in, without credentials and without any special authorisation, that is, in the manner in which it is open to any third party. What is recorded is the point in time, the address retrieved and the result of the retrieval. Failed retrievals are recorded in the same way as successful ones.

3.2 Where a retrieval succeeds, what is additionally recorded is which particulars were publicly delivered on that occasion, preferably the title, the authors, the abstract, the IPC classes and the DOI. A SHA-256 check value is formed from these. Each entry refers to the check value of the entry stored last, so that the entries form a continuous chain. Where an entry is altered subsequently, the check values no longer match and the chain breaks at that point; to that extent the chain is auditable.

3.3 The report documents on which days the publication was publicly retrievable at its address without logging in, and with which particulars it was delivered on those occasions. It is designed to keep that course of events traceable over years.

3.4 Where a publication is removed under clause 5.5, the checks are continued. From that point the entries relate to the reachability of the address and no longer to the accessibility of the document.

3.5 The report is designed to be passed on and submitted in proceedings. It summarises the checks carried out, lists them and contains the particulars required in order to follow the chain. It remains a technical document.

3.6 Proofbox does not warrant any particular frequency of the checks, any completeness of the report, or any particular evidentiary weight in administrative or court proceedings. The statement on frequency in clause 3.1 describes the usual handling; it gives rise to no claim, and checks temporarily not being carried out does not constitute a breach of duty. The scope and method of the checks may be changed. Whether and to what extent the report is taken into account in particular proceedings is decided by the competent body.

3.7 Independently of the checks under clauses 3.1 to 3.3, Proofbox checks internally whether the file belonging to a publication is present in storage and unchanged. That check serves operational monitoring, makes no statement about public accessibility and is not part of the availability report.

4.1 For the event that Proofbox can no longer conduct its business, a continuation contract exists with an independent IT service provider. That continuation contract provides that the archive and the user areas remain retrievable at unchanged addresses for seven years from that point. New publications are no longer possible from that point.

4.2 The continuation contract is framed as a contract for the benefit of third parties. Users whose document is published at that point acquire from it an own claim against the service provider, in so far as that claim concerns their publication.

4.3 The funds for operation during that period are separately provided for and secured independently of the assets of Proofbox GmbH.

4.4 Should that event occur, the user is notified without delay and requested to retrieve their sealed document and their availability report. Six months before the seven years expire, a second notification is given.

4.5 Where Proofbox is sold or merged with another undertaking, the acquiring undertaking accedes to that contract. Such a case does not trigger the continuation under clause 4.1.

5.1 A publication remains publicly retrievable for seven years from the day of publication.

5.2 The term of provision is not decisive for the state of the art coming into being; under clause 1.1 what matters is the making available to the public. Provision under clause 5.1 serves the proof referred to in clause 1.2 and is measured accordingly. It goes considerably beyond the period required for the public to be able to take notice of the disclosure.

5.3 Before that period expires the user is notified. The user may extend the provision or retrieve the sealed document together with the availability report.

5.4 Within that period the addresses of publications are not changed; an address once assigned is not used for another document, nor after the period has expired, since the DOI concerned continues to exist.

5.5 A publication is not removed without cause. Removal occurs at the user's request or by order of an authority or a court. Where a document is removed, the DOI remains resolvable and leads to a notice stating the title, the authors, the date of publication and the period of retrievability.

5.6 The DOI continues to exist beyond that period. It is neither withdrawn nor assigned to another document. Where provision ends, it remains resolvable and leads to the notice under clause 5.5, unless continued provision is arranged. The metadata record deposited with the registration agency under clause 2.4 likewise continues to exist and remains publicly queryable.

6.1 Verification of the seal may be carried out in Adobe Acrobat or Adobe Reader without any involvement of Proofbox. The DOI is resolvable through the registration agency. The publication is retrievable at its address. The availability report states the checks carried out and their result.

6.2 In addition, the user may have the seal of their own publication verified directly on its page in the archive; the purchaser of a document may do so for the document acquired. Verification is carried out with the DSS (Digital Signature Service) verification software, which the European Commission publishes as part of its eSignature building blocks and which Proofbox operates itself for that purpose. It evaluates the seal against the European trusted lists and states the result of the verification, the seal level, the format, the certificate chain and the time stamps contained.

6.3 Verification under clause 6.2 does not take the place of verification under clause 6.1.

7.1 A defensive publication does not establish any industrial property right. Whether it is taken into account as state of the art in particular proceedings is decided by the competent authority or the competent court in the free evaluation of evidence.

7.2 Proofbox provides the technical and organisational preparation. The legal assessment lies with the competent body and with the user's own legal representation. Proofbox gives no legal advice and is not authorised to do so. For the assessment of whether a defensive publication is the appropriate instrument in a particular case, a patent attorney is to be consulted.

7.3 Findability rests on the open indexing of the metadata. The title, the authors, the abstract and the IPC classes of every publication are retrievable without access restriction, are contained in the sitemap and can be evaluated by machine through a public Atom feed. In addition there is the metadata record with the registration agency under clause 2.4.

7.4 Proofbox does not actively transmit publications to patent offices. They are open to those offices in the same way as to any third party, namely through the archive pages, the sitemap and the public Atom feed. Inclusion in the search collections of the offices does not currently exist and is not promised. Proofbox pursues such inclusion; there is no claim to a particular outcome, to a particular point in time, or to notification about the course of events. Inclusion, once achieved, will be announced on the website.

7.5 This declaration does not promise the continued existence of Proofbox GmbH over any particular period. It describes which means of proof exist independently of that continued existence.

8.1 The version of this declaration in force at the time a publication was published applies to that publication.

8.2 Earlier versions are kept by Proofbox and made available on request.