Proper Maintenance of a Laboratory Notebook

The United States laws implementing the general agreement on tariffs and trade (GATT) came into force on June 8, 1995. As a result, as of January 1, 1996, it has been possible for foreign inventors to establish a date of invention in a U.S. patent application by reference to knowledge or use of the invention in a foreign country which is a member of the World Trade Organization (WTO), or activity with respect to it in a foreign country which is a member of the WTO. Since United States patents are awarded to the first person to invent, not the first applicant, an applicant's ability to obtain a patent for his invention may often depend upon how well he documents inventive foreign activity with respect to his invention. This applies, not only to the situation in which an inventor becomes involved in an interference, but also when they wish to avoid or "swear behind" a reference applied against an application by proving a prior date of invention.
Under the new law, it therefore becomes essential for inventors to maintain an accurate and well-documented laboratory notebook.
The following guidelines should be followed with respect to all laboratory notebooks:
    1. The notebook should have permanently bound pages which are consecutively numbered and should be used by a single engineer or scientist.
    2. Ideas, calculations and experimental results should be entered into the notebook as soon as possible, preferably the same date they occur, so that the laboratory notebook becomes a daily record of the inventor's activities.
    3. All entries should be made in the notebook in permanent black ink and should be as legible and complete as possible. Do not use abbreviations, code names or product codes without defining them clearly.
    4. Draw a line through all errors. Do not erase.
    5. Entries should always be made in the notebook without skipping pages or leaving empty spaces at the bottom of a page. If you wish to start an entry on a new page, draw a line through any unused portion of the previous page.
    6. Never tear out or remove a page from the notebook.
    7. Each page should be signed with the inventor's full name and dated. No entry should be changed or added to after signature. If the inventor has any additional information or corrections, a new entry should be made.
    8. Each page of the notebook should be witnessed, signed and dated by a colleague who understands the inventor's work. This should preferably occur daily and certainly no less frequently than weekly. The witness should not be a direct contributor to the work being reported.
    9. If an additional entry is made between the initial and final pages recording an experiment, the entry should identify the page on which the previous entry for that experiment occurs.
    10. When the laboratory notebook is completely filled and is no longer required for reference, it should be indexed and stored in a safe location and, thereafter, handled in accordance with the company's established record retention and destruction policy for such documents.

    Some factors which reduce the value or credibility of your laboratory notebook:

    1. illegible entries are totally worthless;
    2. unsigned or undated pages are almost totally worthless;
    3. notebook pages which have not been witnessed are almost as bad as unsigned and undated pages;
    4. a long delay between the signing of the page by the inventor and the witness raises questions;
    5. consecutive notebook pages which are not dated in chronological order raise questions;
    6. missing notebook pages raise questions;
    7. erasures and deletions raise questions -- instead, any later discovered mistakes should be corrected and explained on the next available blank page, referencing the page with the mistake.
    In modern laboratories it is often the habit of engineers and scientists to maintain records of their work in computer files. We do not believe that computer files can provide sufficient evidence of invention. The reason for having invention records is to be able to prove the earliest date of invention. Since computer records can be updated and changed at will, and their dates are subject to tampering, they cannot serve as evidence that their content was created at a particular time. With a bound notebook, it is clear that the work occurred in a particular sequence and was witnessed by others. Also, scientific experiments can be conducted on the ink and paper in a notebook to prove their age.

    If bound notebooks have not been kept, written invention disclosure forms submitted by the inventors to their intellectual property departments may be the best available evidence. Therefore, they should be a complete description of the invention, dated and signed by the inventor. They should also be witnessed, as soon as possible, by someone capable of understanding the invention.

    It may be difficult and somewhat expensive for companies to maintain invention records in a bound notebook. As a result, this procedure may not be followed in many cases. Nevertheless, the new statute provides benefits to foreign inventors by at least allowing them to prove dates of invention as early as the submission of disclosures to their company's intellectual property department or domestic patent agents.

Copyright © 1995 Darby & Darby. Permission granted to download for personal use and to redistribute without charge.