WIPO Proof

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Jane Lambert

A time-honoured way of proving the existence of a document on a particular day is to place it in a sealed envelope and post it to oneself or a trusted third party.  The envelope would bear a postmark proving the date and place of posting of the envelope.  If the seal was intact and there was no obvious tampering with the envelope it would prove that the ideas expressed in the document existed on the date of posting.  Often it proved other things such as the originator of the idea or at least the author of the document.

In the United States, the exercise was called a "poor man's patent" possibly because it could sometimes identify the person who was entitled to apply for a patent before the Leahy-Smith America Invents Act (Public Law 112-29 26 Sept 2011).  However, it was and is used here to prove the authorship of a copyright work or the originator of a trade secret.  The system of source code escrow is simply a refinement of the idea.  The developer posts the most up to date version of his source code to an escrow agent such as the NCC Group in Manchester which holds it securely  If the developer can no longer maintain the software because it goes out of business or for some other reason the escrow agent will deliver the code in confidence to a third party maintenance contractor who will carry out the developer's duties.  There are also potential uses for the exercise that lie outside the scope of intellectual property such as sealed bids in an auction or postal voting in an election.

Yesterday the World Intellectual Property Organization (WIPO), the UN specialist agency for intellectual property launched a new business service called WIPO Proof.  In the press release WIPO PROOF: WIPO Introduces New Business Service That Provides Evidence of an Intellectual Asset's Existence of 27 May 2020, WIPO Proof is described as "an easy-to-use global, online service that rapidly generates tamper-proof evidence proving that a digital file existed at a specific point in time, and that it has not been altered since that time."  In other words, a digital equivalent of a poor man' patent and used for very much the same purpose:

"The service creates a WIPO PROOF token, a date- and time-stamped digital fingerprint of the file or data, which can be used as evidence in a legal dispute."

The press release continues:

"WIPO PROOF tokens can be used to establish prior existence, helping prevent misuse and misappropriation, and can be useful in safeguarding intellectual assets at every stage of development from concept to commercialization, whether or not they eventually become formal IP rights. "

As Dr Gurry observed in a press conference to launch the new service, this is not a new idea.  Many years ago, I chaired a meeting of local intellectual property lawyers and patent attorneys at the NCC's premises on Oxford Road in Manchester to celebrate World Intellectual Property Day at which the NCC announced a very similar service.  The advantages that the WIPO offers is that it is a well resourced international organization with a good reputation for technical competence and impartiality.

As there are technical alternatives based on the blockchain as well as commercial alternatives from the world's escrow agents I have no idea whether WIPO Proof will succeed.  I hope it does because the WIPO does a lot of good work in many areas from domain name dispute resolution in which I am involved and the WIPO Green online market which I have recently brought to the attention of small businesses in Wales.  The threat by a large contributor to withhold funds from another international organization because of its policy towards another large country underscores the need for international agencies to be self-sufficient.  The WIPO does much for the poorer countries of the world that need assistance in creating robust systems of intellectual asset protection to attract inward investment.

Anyone wishing to discuss this article or indeed source code escrow as I drafted many of the early escrow agreements over 30 years ago should call my clerk Stephen on 07986 948267 or send a message via my contact page.  I shall gladly respond by phone, Zoom or email.