Designers, creators, inventors, and developers often find it necessary to prove that their own creation predates that of others: who first designed a dress offered for sale both by a designer-boutique and by a retail chain store? Which pharmaceutical company first developed a drug that has sparked a patent dispute? Do writers still need to send copies of their manuscripts to their lawyers by registered post in order to prove they are original?

The World Intellectual Property Organization, WIPO, recently launched its WIPO Proof service, which is intended to address this issue. As noted in the WIPO press release, the service “provides tamper-proof evidence of the existence at a point in time of any digital file, including data sets, in any format… WIPO PROOF provides an efficient tool for creating evidence of the existence of an asset’s digital files at each specific point in time, helping mitigate [sic] the risk of future legal disputes, as well as laying a foundation for any eventual registration of a formal IP right”. It is interesting to note that WIPO Proof is not based on blockchain, but rather on Public Key Infrastructure (PKI) technology, for a variety of reasons, including the preservation of anonymity.

The creator’s actual digital file is not stored on the WIPO server, thus ensuring confidentiality of the work in question; rather a time-stamped digital token is generated which serves as a unique identifier of the file in question. This creates reliable, independent evidence, by a credible international organization, attesting to the existence of the invention, design, sketch, creation, etc., at a given time. The cost of creating each token is CHF 20, and bulk purchases are available at discounted rates. The tokens are valid for five years, with optional paid extensions.

Although the practical effect of this new service is yet to be considered by any legal or regulatory authorities, this type of documentation may have significant evidentiary impact on a number of legal issues. Some potentially relevant areas are the dating of pre-patent inventions and trade secrets, lab-notes and records of technological and pharmaceutical developments, design drawings and sketches, as well as all of the following:

• Know-how – formulas, methods, processes, compilations, etc.;
• Creative works– audio-visual works, literary works;
• Industrial designs;
• Software code; and
• Digitally signed documents and version history of agreements/contracts.

Anyone who has access to both the original digital file and the token can validate the token using the WIPO Proof system free of charge; a certificate evidencing the validation will cost an additional CHF 20. Such validation could be particularly useful in litigation proceedings and due-diligence exercises.

The Herzog Fox & Neeman IP team will be happy to advise our clients on the possible benefits of this service to their business.