Tuesday, January 15, 2008

2008-01-16 Backdating - The Old Fashioned Way

The recent (June 2007) Federal Court decision in Armament Systems and Procedures, Inc., v. IQ Hong Kong, Limited, et. al., Case No. 1:00-cv--1257 (E.D. Wis 2007) invalidating a patent for inequitable behavior has some interesting backdating language.

First, it appears that a detailed forensic examination of the inventor's drawings (indentations, positioning, pad backing) revealed creation dates years later than claimed.

Second, a metadata and computer forensic analysis of the computers used by the inventor to generate data indicated a creation date years later than the claimed creation date.

The judge was not amused:

"Defendants have expended considerable effort in an attempt to show that this document is a fraud. Computer searches and meta-data analyses have shown that the only discernible creation date on the document is March 21, 2000. There is, in other words, no digital record of the document having been created in 1997."

This 42 page decision focuses in the main on the efforts of defendant's physical evidence forensics examinations and on corroborative witness testimony, but notably allocates little discourse to the issues uniquely inherent to establishing the authenticity of computer generated information. While metadata and other computer forensics played a role in the determination of evidence "creation" date, it was relegated to a reinforcing, rather than a substantiative, role.That said, it is also noteworthy that date and time bearing metadata and "other" computer information indicated a huge discrepancy between first data instantiation and asserted data instantiation.

The last few pages are also entertaining, with this quote, which might bear the title "Reflections on Randomness":

"But when apparent randomness follows a pattern, it ceases to be random. Thus, the scales were tipped not by the ostensible strangeness of Parsons’ theory per se, but because Parsons’ theory requires belief in the perpetuation of multiple inexplicably random relationships between otherwise unrelated documents. It is possible that such coincidental relationships could have been explained away, but Parsons’ testimony did not succeed in that effort. And when the alternative explanation is as simple as believing documents were in a pad of paper, the chain of unlikely events Armament proposed is unsatisfactory."

And this quote, invoking Occam's Razor:

"Ultimately, the principle of Occam’s Razor supports the simpler explanation over the one requiring belief in multiple coincidences and unusual twists and turns, United States v. Navarro-Camacho, 186 F.3d 701, 708 (6th Cir. 1999), and Armament’s explanation is based on changing stories and layer upon layer of coincidences. But it is not only simplicity that favors the defendants’ theory: the simpler explanation is also the one supported by the weight of the other evidence—the testimony and other events pointing toward a later creation date, as well as the absence of credible documentary evidence corroborating the June 1997 date. Based on all of the above, it is not difficult to conclude by clear and convincing evidence that the document known as Q1 was drafted not in June 1997 but at some much later date. The only reasonable conclusion to be drawn, therefore, is that Parsons committed inequitable conduct by knowingly creating and submitting a false material document to the PTO in 2002. The patent in suit is therefore unenforceable. eSpeed, Inc. v. BrokerTec USA, L.L.C., 480 F.3d 1129, 1135 (Fed. Cir. 2007)."

Link to the article by way of the well written and informative "Patently-O" blog: