YouTube videos as prior art: Public, Private and Unlisted?

17 August 2017

The publication of a YouTube video online may be used as prior art by some patent offices across the world. For this reason, it is important to be careful when considering whether or not to post a video which may disclose your invention before filing your patent application.

In order to determine if a YouTube video may be used as a prior art document in Europe, an Examiner may consider the video as an internet disclosure. For internet disclosures, the test as to whether the disclosure is considered to be citeable prior art is as follows:

  1. Can the internet disclosure be found with the help of a public web search engine, by using one or more keywords all related to the essence of the content of that document; and 
  2. Did the internet disclosure remain accessible at that URL for a period of time long enough for a member of the public to find it, i.e. someone under no obligation to keep the content of the document secret, to have direct and unambiguous access to the video? 

Public

If a video is published under the Public setting provided by YouTube, then in all likelihood an Examiner would be able to locate the video using keywords related to the disclosure of the video, leading to the video being citeable as prior art. This is tried and tested as Public YouTube videos have been used as prior art in previous cases.

Private

If the YouTube video is a Private video it is supposedly unsearchable either through YouTube or any search engine. If a video is posted using this setting it may therefore be unlikely to be citeable in Europe. However, it is unclear as to whether it would be impossible to find such a video… and so it is difficult to be sure whether or not a posted video classified as “private” is entirely secure.

Unlisted

Now comes the tricky part. Some videos are Unlisted. What this means is that you may share a link to the video with other people, BUT the video is NOT searchable using YouTube’s own searching mechanism. However, this is only true of the YouTube search mechanism.

If there are comments or descriptions attached to the unlisted video, the video may be found by searching the words in the comments using search engines such as Google (surprising, considering who owns YouTube). These unlisted videos may be relatively difficult to find using such search engines, but it is yet to be seen how such difficulties may affect an unlisted video’s status as citeable prior art.

Therefore, if the comments/descriptions attached to the unlisted videos contain keywords which satisfy the requirements of point (1) above, these videos may be citeable as prior art.

It should also be noted that if the links to unlisted videos are shared, they must be shared confidentially, otherwise anyone with whom the link is shared is under no obligation to keep the video a secret. It may therefore be considered to have been made available to the public, and hence may be citeable as prior art.

In short, it’s is better to be safe than sorry and refrain from publishing videos related to your invention on YouTube at all before filing a patent application for your invention.

Olivia Murphy

Olivia Murphy

Attorney

Our Expert
Olivia Crawford
Olivia Crawford
Location: Bristol (UK)

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