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In this age where fortunes rise and fall on the legal ownership of technological advances, protecting intellectual property is more important than ever. One of the mission-critical elements in protecting such property — especially with increasingly short lead times allowed to bring a product to market — is firmly establishing the time of creation of works and inventions. Fortunately, while the competition of new technologies shortens the fuse of innovation, it also brings new power to bear on the problem of proving the elements of original invention. Companies that have previously relied on manual, paper-based methods to document the birth of intellectual property are now discovering that practical electronic time-stamping software and techniques allow the process to be automated with increased security. Traditionally, inventions and works of creation have been protected by signed paper documents that affirm what the invention is, who created it, who owns it and establish when the invention was created or reduced to practical implementation. Complex and overlapping sets of statutes and court decisions have accumulated over centuries to govern the commercial and property legal relationships of private parties and the paper-based strategies to protect and profit from what is ours. These traditional legal rules are unlikely to change radically — yet it is clear that both business and technical models are evolving at an astonishing pace. What happens when these worlds collide? And what can be done to reconcile the old with the new? The answer lies in the ability of new electronic technology to provide trustworthiness that is functionally equivalent (and often superior) to that of traditional methods. For example, a paper document is generally trusted to fix the time of an event because methods exist to establish the age of the document. It requires special forgery techniques to alter a time-date stamp on a paper, or to outsmart expert forensics regarding aging. If an electronic document could be marked in an equally trusted way to certifiably prove its age, then it would be just as effective as its paper counterpart in supporting legal assumptions. WHO, WHAT AND WHEN? In authenticating documentary evidence that proves the facts associated with the creation of a work or creation, one is interested in verifying who prepared the document, what was the content and when it was prepared. The questions of when and what can be authoritatively answered by trusted time-date stamping (TTDS), which provides a practical and painless routine way to freeze the content of electronic documents in time. To complete the picture, public key infrastructure (PKI) systems provide direct assurance on both the who issue and the what issue by using digital signatures to provide a powerful means of binding a person’s identity to the content of an electronic document “signed” by that person. Surety.com’s Digital Notary Service (DNS) is a premier TTDS product that resolves both the when and what issues with an elegant strategy. In the DNS system, local user software generates a small but unique digital fingerprint of the data in the document. This fingerprint (also called a hash) is transmitted to a central server that notes the time of receipt and combines it with other hashes received at that time to generate a “superhash value,” which is written into Surety’s Universal Registry. The service then returns a notary record (binary record in proprietary format) to the user. At a later time, when the user needs to authenticate the document, the local software creates a “test superhash” from the stored document and cryptographic information stored in its notary record. This test superhash is then compared to the actual superhash stored in Surety’s universal registry. If they match, then both the document time of creation (when) and content (what) are unassailably verified. No one — not even the folks at Surety.com — can go back in time to insert different content with superhashes that match. THE MATTER OF TIME IS CRITICAL With the enactment of the federal E-SIGN [FOOTNOTE 1]legislation, which became effective Oct. 1, it should not be any surprise that both private and public sector entities are beginning to seek and implement systems that use digital technology to replace paper-based signature systems. [FOOTNOTE 2]After all, properly implemented PKI digital signature systems are recognized to be far more reliable and efficient than traditional means when it comes to authenticating identity over open systems such as the Internet. But many people are less aware of the inherent limitations of digital signatures in proving the critical element of time. As noted, digital signatures can only validate “who” signed the data and in the absence of additional third-party certification, must take the word of the signer — potentially self-serving — as to what day and time it really was when the signer clicked the digital signature button. For this reason, many corporations will seek additional trustworthiness by combining the use of time stamping and PKI digital signatures. In the case of intellectual property protection, it is often not the who, but the when element that is the most critical. In such a situation, the advantage of the DNS system is apparent. A recurrent example involves patent interference challenges. Because the U.S. patent law is a “first to invent” system, there are often significant evidentiary challenges regarding proof of when an invention was made. Traditionally, scientific and engineering laboratory books are kept as daily paper records of inventive progress, routinely signed by the inventors and then submitted to be co-signed, witnessed and attested, and submitted to a closely controlled document repository maintained by trusted co-workers. Clearly, efficiency and productivity would be benefited by moving from paper books to word processing programs, spreadsheets, databases and graphics programs on laptop computers, provided that a reliable method is in place to routinely fix the content of these electronic records in a manner that cannot be repudiated. An important legal issue involves determinations of patentability under � 102(b) of the U.S. patent statute. For example, if an invention is in public use or on sale more than one year prior to patent application filing with the Patent and Trademark Office (PTO), the invention will be barred from patent protection. Again, documentation of use and sales is likely to be found in a company’s electronic records. A routine time/date stamping mechanism for all laboratory records, which is both reliable and nonrepudiatable, could avoid a determination of unpatentability with its grave impact on future revenue prospects from the invention. An R&D operation could easily deploy a system for the routine DNS time stamping of each researcher’s laptop notes every day, or every week or every hour. The benefit might be to save an invention’s substantive value in a bet-the-company case, and will at least save costs associated with arguing and proving event dates. Depending on a company’s specific application and security need, some may combine digital signature technology with Surety.com’s DNS to ensure complete protection, while others may rely solely on DNS to protect intellectual property. IT’S JUST A MATTER OF TIME The possibilities of TTDS/PKI synergy have not gone unnoticed in the PKI industry. The ABA Information Security Committee’s Digital Signature Guidelines have recognized TTDS as critically important to a trustworthy system of digital signatures based on PKI. The Certification Practice Statement of VeriSign Inc. requires a number of its critical messages, including all its certificates and certification revocation lists, to be reliably time-stamped, with cryptographic-based time stamps to be implemented incrementally for all relevant messages of issuing authorities. RSA Data Security Inc., a leading provider of public key encryption software, also agrees with the need for combination of TTDS and PKI services. The use of both time stamping and PKI technologies is likely to take the security of electronic documents, digital forms of intellectual property and even e-commerce to a new plateau of acceptance. From a legal perspective, this combination permits the formulation of simple and fair rules of legal nonrepudiation that will nurture rather than confuse the electronic explosion now in progress. By matching and sometimes exceeding the legal and functional integrity of paper-based signatures, the Digital Notary Service and similar technologies will further facilitate the application of the existing commercial law to brand new web-centric business models that will arise in the future. RESOURCES For information about time stamping and Digital Notary Service on the Web, go to http://www.surety.com. You can read more about the risks of PKI or digital signature technology at http://www.counterpane.com/pki-risks.pdf. Charles R. Merrill is a partner with McCarter & Englishin its Newark, N.J., office, where he is a member of the firm’s intellectual property/computer & high technology law practice group. Robert J. Burger, a lawyer in that group, assisted in the preparation of this article. The views expressed in the article are Mr. Merrill’s own, and should not be considered endorsed by any other entity. ::::FOOTNOTES:::: FN1Electronic Signatures in Global and National Commerce Act, Pub. L. 106-229 (June 30, 2000). FN2 See alsothe federal Paperwork Elimination Act, 44 U.S.C. 3504 et seq., Title XVII of Pub. L. 105-277 (Oct. 21, 1998), generally requiring federal agencies to phase in to paperless forms in phases within five years from date of enactment.

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