Prepared for:

![](media/image1.wmf){width="1.4729166666666667in"
height="1.4430555555555555in"}

**\
LONG-TERM ACCESS and MIGRATION STRATEGY\
\
**FOR THE LIFE CYCLE MANAGEMENT OF

ELECTRONIC PATENT AND TRADEMARK CASE FILES

February 26, 1999

**Contract Number:** 50-PAPT-700041 **Task Number**: 56-PAPT-8-05089

**Deliverable:** 98-03-10

**Government Task Managers:** Arthur F. Purcell, (703) 308-6868, FAX
(703) 308-6916\
Kathy Schultz, (703) 308-7400, FAX (703) 308-7407

**Contractor:** Cohasset Associates, Inc.\
3806 Lake Point Tower\
505 North Lake Shore Drive\
Chicago, IL 60611\
Tel. 312/527-1550

**Contractor Task Manager:** Richard D. Fisher, (408) 741-1287, FAX
(408) 867-1289\
e-mail: rd.fisher@worldnet.att.net

Table of Contents

1 introduction [1](#introduction)

2 Purpose and Scope [4](#purpose-and-scope)

3 MANAGEMENT summary [5](#management-summary)

3.1 Background [6](#background)

3.2 Conceptual Foundation [7](#conceptual-foundation)

3.3 Strategy and Recommendations [8](#strategy-and-recommendations)

3.4 General Policy [8](#general-policy)

3.5 Quality Control [9](#quality-control)

3.6 Electronic Recordkeeping Functions
[9](#electronic-recordkeeping-functions)

3.7 Migration: Reformat, Copy, and Transfer
[11](#migration-reformat-copy-and-transfer)

3.8 Physical Security [12](#physical-security)

3.9 Environmental Control and Monitoring
[12](#environmental-control-and-monitoring)

4 research projects and other studies
[13](#research-projects-and-other-studies)

4.1 University of Pittsburgh [13](#university-of-pittsburgh)

4.2 University of British Columbia [14](#university-of-british-columbia)

4.3 US Department of Defense Records Management Project
[15](#us-department-of-defense-records-management-project)

4.4 Preserving Digital Information: RLG/CPA Task Force on Archiving of
Digital Information
[16](#preserving-digital-information-rlgcpa-task-force-on-archiving-of-digital-information)

4.5 SESAM [17](#sesam)

4.6 Nordic Council for Scientific Information
[18](#nordic-council-for-scientific-information)

4.7 International Council on Archives
[18](#international-council-on-archives)

4.8 Open Archival Information Systems (OAIS) Project
[19](#open-archival-information-systems-oais-project)

4.9 DLM Forum [21](#dlm-forum)

5 CONCEPTUAL FOUNDATIONS [22](#conceptual-foundations)

5.1 Paper Records, Data Files, and Electronic Records
[22](#paper-records-data-files-and-electronic-records)

5.2 Authenticity and Reliability [23](#authenticity-and-reliability)

5.3 Electronic Recordkeeping Functions
[24](#electronic-recordkeeping-functions-1)

5.4 Technology Obsolescence [25](#technology-obsolescence)

5.5 Migration [26](#migration)

5.5.1 Media Renewal - Reformat [27](#media-renewal---reformat)

5.5.2 Media Renewal - Copy [28](#media-renewal---copy)

5.5.3 Transfer [30](#transfer)

6 long-term access strategy [32](#long-term-access-strategy)

6.1 Electronic Recordkeeping Functions
[32](#electronic-recordkeeping-functions-2)

6.1.1 Readable [33](#readable)

6.1.2 Intelligible [34](#intelligible)

6.1.3 Encapsulated [35](#encapsulated)

6.1.4 Understandable [37](#understandable)

6.1.5 Reconstructible [38](#reconstructible)

6.1.6 Unaltered [38](#unaltered)

6.2 Reformatting, Copying, and Transferring
[40](#reformatting-copying-and-transferring)

6.2.1 What Storage Medium to Use? [41](#what-storage-medium-to-use)

6.2.2 When to Reformat, Copy, and Transfer?
[42](#when-to-reformat-copy-and-transfer)

6.2.3 How to Ensure Trustworthiness?
[43](#how-to-ensure-trustworthiness)

6.2.4 How to Protect From Alteration or Loss?
[44](#how-to-protect-from-alteration-or-loss)

6.3 Non-Proprietary Standards [44](#non-proprietary-standards)

7 recommendations [46](#recommendations)

7.1 General Policy [46](#general-policy-1)

7.2 Quality Control [47](#quality-control-1)

7.3 Electronic Recordkeeping Functions
[48](#electronic-recordkeeping-function)

7.4 reformat, copy, And transfer [49](#reformat-copy-and-transfer)

7.5 physical security [50](#physical-security-1)

7.6 Environmental Control and Monitoring Program
[52](#environmental-control-and-monitoring-program)

# introduction

Between now and the year 2003, the PTO is undertaking electronic patent
and trademark filing, processing and maintenance programs that are part
of a broader program of PTO modernization.

The electronic patent and trademark business processes can be broadly
divided into an applicant component, and a PTO case file processing and
maintenance component. At the point when a patent or trademark
application or associated material is received from an applicant, or is
created as part of the examination process by the PTO, it becomes a
record copy and, therefore, is subject to the United States statutes and
regulations governing the creation, use, preservation, and disposition
of federal records.

Maintaining the *integrity* of patent and trademark records is required
by law (18 U.S.C. § 2071. **Concealment, removal, or mutilation
generally**). The integrity of the records in a patent or trademark case
file must be maintained for their full retention life.

There are three requirements in 36 CFR that have particular relevance
for the life cycle management of patent and trademark case files.

First, 36 CFR § 1234.22, Creation and Use of Text Documents**,**
requires that the integrity of electronic records be maintained:

\(a\) Electronic records systems that maintain the official file copy of
text documents on electronic media shall meet the following minimum
requirements:

**. . .**

\(2\) Provide an appropriate level of security to ensure integrity of
the documents;

The second requirement in 36 CFR is to maintain the patent and trademark
case files in a usable form and to ensure that they are "protected from
unauthorized change or deletion for the length of their scheduled
retention period" (36C FR §1222.50\[8\], (36 CFR §1234.30 \[e\], and 36
CFR §1234/32\[c\]). CFR §1234.30 Selection and Maintenance of Electronic
Records Storage Media requires agencies to:

> \(3\) Retain the records in a usable format until their authorized
> disposition date; and (4) if the media contains permanent records and
> does not meet the requirements for transferring permanent records to
> NARA . . . , permit the migration of permanent records at the transfer
> to a media which does meet the requirements.\" (36 CFR Ch. XII,
> Subpart C, 1234.30 \[7-1-98 Edition\], p. 613)

Although this section of the CFR does not explicitly define the meaning
of \"usable format\", other CFR references indicate that the overall
intention is to ensure long-term access to intelligible electronic
records that have been protected from alterations and deletions or loss
resulting from changing technology or deterioration. (36 CFR
§1234.30(e)). Access, it should be noted, not only includes indexing
tools and the like that support search and retrieval, but also
encompasses all of the technical and intellectual requirements that are
necessary for electronic patent and trademark case files to be fully
usable and understandable during their full life cycle.

Third, under 36 CFR §1228, Disposition of Federal Records, the PTO is
required to develop a records schedule, which the Archivist of the
United States must approve, that establishes a retention period for all
records, including patent and trademark case files (36 CFR §1234.34).

The PTO 1997 Comprehensive Records Schedule identifies the retention
period for issued patents, and abandoned patents referenced by an issued
patent, as permanent. The PTO has custody and responsibility for the
case files of issued patents for forty years, after which they are
transferred to the National Archives and Records Administration (NARA)
for permanent retention. Registered trademark case files are retained by
the PTO until they are cancelled or expire. Trademark case files
selected for permanent retention are transferred from the PTO to NARA
six years after they are cancelled or expire, otherwise the non-selected
case files are retained by the PTO for two years prior to disposal.

It is highly likely that over the next four decades or so there will be
enormous changes in digital storage and processing technologies and,
therefore, the PTO should have in place a program that supports
long-term access to electronic patent and trademark case files, no
matter what changes occur. It is for this reason that this study on a
long-term access and migration strategy for electronic patent and
trademark case files was undertaken.

Section 1 of this report contains introductory and background
information about the document. Section 2 defines the purpose and scope
of the deliverable. Section 3 contains a Management Summary that
highlights salient features of the report. Section 4 reports the
findings of several recently completed research projects and reports
that address issues associated with long-term access to electronic
patent and trademark case files. Section 5 reviews the conceptual
foundations underlying the study, including recordkeeping application
environment, technology obsolescence, archiving, authenticity and
reliability, media renewal, transfer, migration, and migration versus
transfer. Section 6 articulates a long-term access strategy for the PTO
to ensure that electronic patent and trademark case files remain usable
and accessible throughout their authorized disposition date, regardless
of changes that may occur in information technologies. Section 7
contains recommendations for a long-term access and migration strategy
for the PTO to consider in the implementation of the information
infrastructure and application information systems (AIS) for electronic
patent and trademark case files. These recommendations are based upon a
synthesis of conceptual foundations discussed in Section 5 and
electronic patent and trademark case file preservation strategy
discussed in Section 6.

# Purpose and Scope

The purpose of this report is to set forth a long-term access and
migration strategy that:

-   Provides long-term access to electronic patent and trademark case
    files during their authorized retention period,

-   Satisfies legal and regulatory requirements, and

-   Can be incorporated into the life cycle management of electronic
    patent and trademark case files.

The concept of long-term access includes three fundamental aspects of
electronic records management over the full life cycle:

1)  Preserving the integrity, and, as such, the trustworthiness of
    electronic case file records,

2)  Ensuring the processibility of electronic case file records through
    the capability to automatically access and render electronic case
    file records with their original structure, content, and context,
    and

3)  Providing for the transferability of electronic case file records
    without any loss in structure, content, or context from one
    technology environment to another that result from major upgrades or
    renewals of system hardware or electronic recordkeeping functions.

The term migration is used in this report as an umbrella concept that
emphasizes ensuring the processibility and integrity of electronic
patent and trademark case files regardless of the specific technology
platform in use. The specific methods for conducting migration, which
include media renewal (copy and reformat) and transfer, take into
account variations the potential effects of migration on electronic
patent and trademark case files, and the requirements for providing
controls and documentation of these migration methods.

# MANAGEMENT summary

Between now and the year 2003, the PTO is undertaking an electronic
patent and trademark filing, processing and maintenance program that is
part of a broader goal for PTO automation. The inherent result of the
electronic workplace is the receipt and creation of records in
electronic format. At the point when a electronic patent or trademark
application or associated material is received by the PTO or is created
as part of the examining process by the PTO and committed to a case
file, it becomes subject to Code of Federal Regulations (CFR) governing
the creation, use, preservation, and disposition of federal records.

Federal regulations require agencies to:

> \(3\) Retain the records in a usable format until their authorized
> disposition date; and (4) if the media contains permanent records and
> does not meet the requirements for transferring permanent records to
> NARA . . . , permit the migration of permanent records at the transfer
> to a media which does meet the requirements.\" (36 CFR Ch. XII,
> Subpart C, 1234.30 \[7-1-98 Edition\], p. 613)

The PTO 1997 Comprehensive Records Schedule identifies the retention
period for issued patents, and abandoned patents referenced by an issued
patent, as permanent. The PTO has custody and responsibility for the
case files of issued patents for forty years, after which they are
transferred to the National Archives and Records Administration (NARA)
for permanent retention. Registered trademark case files are retained by
the PTO until they are cancelled or expire. Registered trademark case
files selected for permanent retention are transferred from the PTO to
NARA six years after they are cancelled or expire, otherwise the
non-selected case files are retained by the PTO for two years prior to
disposal. The PTO will have to retain many of the electronic patent and
trademark case files and records in accessible and usable form for 40
years of longer.

Over the next four decades or so there will be enormous changes in
digital storage and processing technologies and therefore the PTO must
have in place a strategy and program that supports long-term access to
and preservation of electronic patent and trademark case files no matter
what changes occur in digital storage and processing technologies.

## background

The PTO has many years of experience in managing digitally stored files
consisting of full-text and digitized, compressed images of published
patents, as well as management of the PALM database (bibliographic,
retrieval and tracking metadata) that is used to track and provide
status information on pending and issued patents and abandoned patent
applications. The PTO has recently undertaken a major media renewal by
copying compressed, digitized image files of published patents from
optical media to magnetic media. The final stage of this migration will
be a transfer and reformatting of published patent images, which are in
a proprietary image and compression format, to a more open image format
(TIFF) and an accessibility environment that is designed to better
support long-term access.

However, based on the definition of a Federal record (44 U.S.C. 3301),
published patent databases (image and full text) are considered to be
non-records or temporary files, not the legal record copy. The legal
record copy, namely the patent and trademark case files, have always
been managed in paper form.

Conceptually, there are similarities between the management of
"temporary" digital patent databases and the electronic record copies
that will reside in case files. However, there are a number of unique
considerations related to the management of electronic records that are
driven primarily by the requirement to preserve the integrity and, as
such, the authenticity and reliability of the electronic legal record
copy. This is complicated by the requirement for the PTO to retain
custody of issued patent case files for forty years and registered
trademark case files for a potentially indefinite period of time. These
unique areas are discussed as part of the following conceptual
foundation.

## Conceptual Foundation

While this report covers the strategies for migration of electronic
records from one technology or technical solution to another, its
overall focus is on the broader strategy and requirements that ensure
the preservation of authenticity and reliability of electronic records
over the full record disposition period. There are five requirement
areas that need to be addressed in a long-term access strategy.

The first area is fundamental and addresses the integrity and, as such,
the trustworthiness of electronic patent and trademark case files over
the full retention period, namely that the electronic records remain
unaltered. This means that from the time any type of electronic patent
or trademark record, whether received from an applicant or created by
the PTO, is committed to the case file, its structure, content, and
context cannot be changed by anyone, including the individual or
organizational component that initially created, used, and maintained
it.

The second area involves ensuring the processibility and transferability
of electronic case files over the full retention period. Processible
means that the electronic case files can be read, accurately
interpreted, and rendered on a monitor or by a printer with current
computer technology without regard for the technology environment in
which they were created, used and maintained. Transferable means that
the case files can be moved from one automated information system (AIS)
environment (e.g., electronic recordkeeping functions) to another with
no material or visible loss in content, structure or context.

The third area addresses preserving the accessibility of electronic
patent and trademark case files using recordkeeping functionality that
includes: preserving the integrity of electronic records; maintaining
the readability; ensuring their intelligibility, reconstructability,
understandability, and encapsulating with them appropriate metadata.
These functions are intended to mitigate any diminution in the legal
status of electronic patent and trademark case files as authentic and
reliable records, despite changes in computer technology. Whether these
functions are provided as part of an AIS or in a separate electronic
recordkeeping system, the care and handling of electronic records should
be guided by the policies and procedures of the PTO Records Management
program.

The fourth area deals with the development and implementation of
rigorous policies, procedures that carefully describe the circumstances
under which actions are taken to ensure the processibility and
transferability of electronic patent and trademark case files, including
the identification of the organizational unit, individual(s), and
automated tools that were involved.

The fifth area relates to the use of non-proprietary information
technology standards, especially those dealing with file formats. (For
more information on file formats see the report deliverable 98-03-08 for
Task Order 98-03. *Assessment of File Formats to Support the Life Cycle
Management of Patent and Trademark Case Files*).

The considerations and alternatives for addressing these areas and the
recommendations regarding appropriate solutions for the needs of the PTO
are set forth below.

## strategy and Recommendations

The strategies and recommendations are designed to ensure long-term
access to electronic patent and trademark case files and cover the
following areas:

-   The importance of preserving the authenticity and reliability.

-   The importance of a clear policy statement regarding long-term
    access.

-   The need for clearly defined quality control procedures.

-   The actual practices that the PTO should follow in providing
    long-term access to reliable patent and trademark case files.

-   The importance of using non-proprietary standards for facilitating
    long-term access.

## general POLICY

The mandate of the PTO to provide long-term access to usable electronic
patent and trademark case files should be explicitly reflected in a
policy statement. A sound policy statement should specify the objectives
of the program and the circumstances under which media renewal
(reformatting, and copying) and transfer activities are initiated, and
the types of compliance audits that will take place.

## QUALITY CONTROL

Archival science and the Federal Rules of Evidence give the greatest
weight of trustworthiness to records (patent and trademark case files)
that are created and used in accordance with established controls and
procedures. Whatever actions the PTO takes to ensure long-term access to
electronic patent and trademark case files should be carried out in
accordance with written procedures.

Among the quality control techniques to be considered are comparisons of
Cyclical Redundancy Checksums (CRCs), hash digests, and before and after
bit/byte comparisons that identify whether any information has been lost
during media renewal or transfer. To ensure compliance with these
procedures, periodic quality control audits should be conducted.

## ELECTRONIC RECORDKEEPING FUNCTIONS

The following functional areas of electronic recordkeeping are necessary
to provide for long-term access and preservation of electronic patent
and trademark case files:

-   *Unaltered*: Under Rule 901 of the Federal Rules of Evidence,
    authentic electronic patent and trademark case files means that they
    are what they purport to be \-- that is, trustworthy case files
    whose structure, content, and context have not been altered,
    changed, or otherwise corrupted.

-   *Readable*: The bit stream comprising patent and trademark case
    files can be processed on the computer system or device that
    initially created it, the computer system or device that currently
    stores it, or the computer system or device that will be used to
    store the digital information in the future.

-   *Intelligible*: A function of information about what the bit stream
    in fact represents and the operating software\'s capacity to take
    appropriate action based upon this information.

-   *Understandable*: Electronic patent and trademark case files are
    understandable because they are intelligible to both a computer and
    humans. Electronic material is intelligible to humans when it
    conveys information about a person, an event, concept, person, or
    related phenomenon.

-   *Reconstructible*: Electronic records can be rendered so that they
    have the \"same logical and physical structure and intellectual
    content\" as when initially moved into an electronic recordkeeping
    application environment.

-   *Encapsulated*: All of the information associated with a specific
    electronic patent case file, such as metadata, content, and linkages
    to multimedia, exists as a single logical or physical entity.

Satisfying these recordkeeping functions could be attained as an
integral part of one or more primary patent or trademark AISs. However,
considering the forty year period that issued electronic patent case
file records are retained by the PTO, and the indefinite period of time
that registered electronic trademark case files could be retained, a
separate but accessible electronic recordkeeping system could
potentially provide a more cost effective means of supporting these
preservation requirements over the long term.

It is recommended that electronic recordkeeping functions be developed,
either as an integral part of an AIS system or provided as part of stand
alone recordkeeping system, that meet the following requirements:

-   Prevention of any changes to the structure, content, and context of
    electronic patent and trademark case files using access controls,
    read-only viewing controls and version control.

-   Retrieval of electronic case files based upon a data elements
    (\"properties\") in profile metadata or full-text search.

-   Encapsulation of all components of an electronic patent or trademark
    case file, including content, metadata for long-term retention and
    metadata of results from quality controls applied during media
    renewal or transfer of electronic records.

-   Capture and preservation of all long-term retention metadata
    identified in Task Order 98-Deliverable 03-11, *Metadata
    Requirements for Long-term Access and Retention of Electronic Patent
    and Trademark Case Files*.

-   Expansion of profile metadata to include relevant information useful
    for preservation purposes, such as the history use file (below)

-   A use history file that contains specified metadata (e.g., CRCs or
    hash digests) generated during the reformatting, copying, or
    transferring electronic patent and trademark case files

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-   Capture and preserve as metadata or as audit trails the quality
    control decisions and the results of actions taken to ensure
    long-term access to reliable electronic patent and trademark case
    files.

## migration: reformat, copy, and transfer

In order to address this requirement, a long-term access strategy is
proposed that includes a component to ensure the processibility of
electronic patent and trademark case files in a current electronic
recordkeeping environment and their transferability from this dependency
application environment to a new one as the PTO upgrades its Information
Technology infrastructure or installs a completely new technology
platform. The specific means proposed for achieving these objectives are
media renewal, which consists of reformatting and copying electronic
patent and trademark case files, and transfer, which consists of moving
electronic patent and trademark case files from an existing technology
platform to a new one.

The recommendations are to develop and implement procedures for
reformatting, copying, and transferring electronic patent and trademark
case files that include the following:

-   Copy and reformat, if required, electronic case file records at the
    time they are moved from one electronic recordkeeping application
    environment to another.

-   Reformat electronic case files when new storage devices or media are
    utilized.

-   Copy electronic case files every ten years (36 CFR 123430\[g\]\[5\])
    if magnetic tape is the storage medium.

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-   Copy electronic case files when the annual readability sample
    discloses ten or more temporary or read "errors" on a specific
    storage medium

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-   Transfer electronic case files to a technology platform when the
    current software is upgraded or a new electronic records management
    system is installed

-   Ensure the trustworthiness and integrity of reformatted, copied, and
    transferred electronic case files by employing a strict quality
    control procedure that may include bit/byte comparisons and
    comparisons of hash digests and CRCs.

-   Document fully all actions taken when reformatting, copying and
    transferring electronic case files and include this information in
    the metadata associated with each case file

-   Provide for disaster recovery by creating two copies of electronic
    case files at the time of reformatting, copying, or transfer and
    store one copy as a vital record backup at an off-site location.

## physical security

Protecting the physical security of electronic patent and trademark case
files from alteration, change, or loss should be a critical component of
the mission of a PTO storage repository in which electronic patent and
trademark case files are stored. The following recommendations are
offered for achieving this objective:

-   Maintaining a controlled access storage facility and monitor
    compliance with access control procedures.

-   Locating the storage facility in an area where the threat of a
    natural disaster is minimal.

-   Creating a disaster vital record backup copy that is stored at a
    separate physical location and developing and testing a disaster
    recovery plan.

-   Adhering to the recommendations of *NBS Special Publication 500-101
    Care and Handling of Computer Magnetic Storage Media* (pp. 37 - 52)
    regarding exposure to magnetic fields if a magnetic storage medium
    is used.

## ENVIRONMENTAL CONTROL AND MONITORING

The continued readability of electronic patent and trademark case files
can be establishing by developing a program that provides: 1) a stable
storage environment, and 2) proper care and handling procedures. Such a
program should include the following:

-   Implementing a program based upon 36 CFR 1234.309(g)(4) to read
    annually a statistical sample of the storage media to identify real
    or impending loss of information

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-   Maintaining a stable storage environment in which the temperature
    and relative humidity (RH) are 15º C (59° F±5) and 40% (±5)

-   Installing a filter system to remove air dust particles and gas
    pollutants

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-   Prohibiting the consumption of food and beverages and smoking in the
    storage facility.

# research projects and other studies

A number of research projects and studies have examined electronic
records issues and requirements from a theoretical, policy, and
implementation perspective. Each of these studies has made a significant
contribution to the state of archival knowledge and understanding of
critical issues that electronic records pose. This section of the report
reviews nine research projects and studies that contain useful
background information for the PTO life cycle management of electronic
patent and trademark case files.

## University of Pittsburgh

Between 1993 and 1996 James Williams and Richard Cox (along with David
Bearman and other associates) conducted a study to identify the
"functional requirements" for electronic records management, one of
which is migration. In addressing migration, the project team focused on
two requisites that are essential in the design of systems for the
creation and management of electronic records: "First, the assurance
that such records satisfy the requirements for evidence and second, the
methods by which records can be made available over time without
constant re-presentation and migration of their intellectual contents.\"
(David Bearman, \'The Physical Archives and the Virtual Archives, \"
*Archivum* XLIII (1997): 1.)

The research associated with assuring that electronic records satisfy
evidentiary requirements focused on practical considerations, beginning
with what is called the "literary warrant" for records. A literary
warrant is a statutory, regulatory, or organizational policy requirement
to create and maintain records as evidence. A review of more than two
hundred such "literary warrants" identified core record requirements
that formed the basis of fourteen functional requirements. Of particular
interest to this study is a technical report by David Bearman and Ken
Sochats on the production rules and metadata requirements for
business-acceptable communications as evidence that can also support the
"periodic migration" of electronic records. The metadata requirements
for business acceptable communications are divided into six layers:
Handle, Terms and Condition, Structural, Context, Content, and Use
History. Each of the six layers is then subdivided into a number of data
elements that flesh out the requirements. The sixth level \-- Use
History \-- identifies metadata that tracks (i.e., a usage audit trail)
the use history of each record, from creation through various stages of
processing, which has a direct bearing on ensuring the trustworthiness
of electronic records.

## University of British Columbia

The University of British Columbia Project, which is entitled "The
Preservation of the Integrity of Electronic Records," offers a largely
theoretical perspective. Project Director Luciana Duranti and her
colleagues, Terry Eastwood and Heather MacNeil, focused upon the concept
of a record, the nature of a record, and the identification of a
record\'s component parts by using an inductive methodology that takes
into account fundamental concepts of archival science that have been
known in Europe for several centuries.

One of the major conclusions of the UBC project is a clear and explicit
articulation of the concepts of reliable and authentic electronic
records. The reliability of records involves their trustworthiness as
"proof and memory of the activity of which they constitute the natural
by-product, that is, to their ability to stand for the facts they are
about." The capacity of records to "stand for the facts they are about"
is determined by procedures that control their form and creation and the
trustworthiness of the creator in ensuring their accuracy.

Equally important is the authenticity of electronic records, which the
UBC project defines as "reliability over time."[^1] From this
perspective, ensuring the authenticity of electronic records requires
protecting records against alteration from the moment of transmission
through any reproduction and preservation procedure. This is crucial
because providing long-term access to electronic records involves
operations and procedures that expose the records to the risk of
alteration or loss of contextual information. The authenticity of
electronic records can be ensured only in the form of reliable copies,
i.e., records whose preservation is made possible through an
uninterrupted sequence of reproduction that is done in accordance with
rigorously controlled procedures.

## US Department of defense Records Management Project

In 1993 the U.S. Department of Defense established a Business Process
Reengineering Task Force to identify opportunities to improve the
records management process, especially in light of the increasing use of
distributed network technologies to create and use records. Two years
later a Records Management Task Force was created to address electronic
records management issues. Working with the UBC project staff, the task
force used the Integrated Definition Language (IDEF) to develop a
business entity and process model for managing electronic records. Based
upon these two models, the DOD project staff issued several reports,
including a Design Criteria Standard for Electronic Records Management
Software Applications (DOD 5015.2-STD) that was issued in November 1997.
The standard identifies \"mandatory and optional baseline functional
requirements for Records Management Applications (RMA) software\" that
are used to certify RMA software that complies with the standard. Among
the mandatory requirements are the capacities to:

-   manage records without regard for storage media or other
    characteristics

-   implement file plans and allow users to assign a file code to each
    record

-   prevent changes to documents that have been designated as records

-   permit creation of profile data (metadata) when a record is filed

-   designate a record as a vital record

-   date a record automatically when it was saved as a record

-   treat electronic mail messages as records

-   assign disposition schedules

-   retrieve records based upon a specified list of data elements

-   delete records and records profiles scheduled for destruction

-   provide audit utilities of records capture, retrieval, and
    preservation activities to ensure their reliability and authenticity

-   read and process records

Currently, three software applications -- TRIM from Tower Software,
FOREMOST from Provenance Systems, and PC DOCS from PCDOCS Corporation
\-- have been certified as being in compliance with these functional
requirements.

The language used to describe the \"read and process records\"
functional requirement merits quoting below because with the exception
of the somewhat ambiguous meanings for the terms: *format of stored
records*, *reliability of the record*, and *migration*, it tracks
closely with the focus of this study.

> Since RMAs \[Records Management Applications software\] are prohibited
> . . . from altering the format of stored records, the organization
> shall ensure that it has the ability to view, copy, print, and if
> appropriate, process any records stored in RMAs as long as that record
> must be retained. The organization may meet this requirement by
> maintaining the hardware and/or software used to created or capture
> the record; by maintaining hardware and/or software in its native
> format; by ensuring downward compatibility when hardware and/or
> software is updated; or by migrating the record to a new format before
> the old format becomes obsolete. Any migration shall be controlled to
> ensure continued reliability of the record.

## Preserving Digital Information: RLG/CPA Task Force on Archiving of Digital Information

Another widely publicized investigation into the problem of long-term
access to electronic records is the work of a task force on preserving
digital information sponsored by the Research Libraries Group (RLG) and
the Commission on Preservation and Access (CPA).[^2] In January 1995 RLG
and the CPA established a "Task Force on Archiving of Digital
Information" and charged it with the task of examining the problems and
issues associated with providing "continued access indefinitely into the
future of records stored in digital electronic form." The focus of this
task force was on the impact of digital technology obsolescence on
libraries and archives. The Task Force report was published in May of
1996.

The Task Force report contains a cogent presentation of the limitations
of digital technology, particularly with regard to technology
obsolescence. The report argues that the present approach to technology
obsolescence through "periodic refreshing of digital information" by
copying it to new media fails to cover the full range of issues.
Migration, the report holds, is a much broader term that encompasses a
number of organized tasks and options. Migration is defined in the
report as:

the periodic transfer of digital materials from one hardware/software
configuration to another, or from one generation of technology to a
subsequent generation. The purpose of migration is to preserve the
integrity of digital objects and to retain the ability for clients to
retrieve, display, and otherwise use them in the face of a constantly
changing technology

The report includes a detailed cost-benefit analysis of the use of
digital technologies for preserving books and library materials
vis-à-vis the cost of preserving the same books in paper form for ten
years. The report concludes with nine recommendations for follow-up
action by the Commission on Preservation and Access and the Research
Libraries Group that relate to funding cooperative retrospective digital
conversion services, demonstration projects, and practical experiments
in the archival applications of a variety of technology tools.

## SESAM

Another project is the work of Ulf Andersson, an information technology
specialist at the ASTRA Corporation, an international pharmaceutical
company in Sweden. Andersson's report looks at the migration of
electronic records from a business information model perspective.
Andersson employs concepts and technical language that are unfamiliar to
many archivists and records managers, especially those in North America,
and consequently the archives and records management communities may not
fully comprehend the importance of the study. Nonetheless it is a
seminal study. It incorporates key concepts from archival science and
advances our knowledge of technological solutions and techniques that
are available today, are under development, or should be developed. In
addition, it employs the concept of encapsulating electronic records in
SGML described containers. Furthermore, the study suggests that the
business community and archives can forge an alliance to promote the
development and implementation of generic tools and standards that
support the migration of reliable electronic records.

## Nordic Council for Scientific Information

A closely related effort to address the issue of long-term access to
electronic records is a project by the Nordic Council for Scientific
Information that resulted in the publication of a report entitled *To
Preserve and Provide Access to Electronic Records*. The Nordic Council
study focused on three key issues: 1) development of software for
transferring database records with a flat file structure to a relational
database structure in order to facilitate on-line access, 2)
investigation of adequate storage media for long-term storage of
electronic records, and 3) analysis of different physical arrangements
for long-term storage of electronic records.

This report introduces several important considerations regarding
long-term access to reliable electronic records. From the Nordic
perspective, the long-term storage format for database records is a flat
file structure. On-line access to these records requires that they be
converted to a SQL-conforming database application. The Nordic report
also addresses the question of the appropriate long-term storage media
for electronic records and identifies eleven criteria that should be
kept in mind when selecting media for the long-term storage of
electronic records. Based upon these criteria, Digital Linear Tape (DLT)
and 4 mm and 8 mm tape were identified as the most suitable for
long-term storage of electronic records in the Nordic context.

## International Council on Archives

The Electronic Records Management Committee of the International Council
on Archives (ICA) initiated a project in 1994 that culminated in the
release of three studies in June 1996. The first study is a thorough and
persuasive guide that is "designed to help archival institutions
reposition themselves to address the management of electronic records."
It is divided into two parts, the first of which examines the impact of
technological, organizational, and legal trends on institutions,
particularly archives, to keep and manage records in electronic form.
Based upon this examination, the study proposes a number of strategies
that archival institutions should consider. The second part focuses on
tactics that archival institutions may wish to adopt. The Committee
anticipates further work over the next year or so in fleshing out these
"how to" techniques. The second study is a survey of current programs to
manage electronic records that are planned in 134 archival institutions
around the world. The third study is a literature review dealing with
electronic records prepared for the committee by Alf Erlandsson, former
Archivist of the United Nations. These three studies collectively are a
valuable and convenient general resource for archivists and records
managers. However, the studies do not offer very many specific
guidelines or recommend best practices.

## Open Archival Information Systems (OAIS) Project

In 1995 Subcommittee 13, Space Data and Information Transfer Systems,
Technical Committee (TC) 20, Aircraft and Space Vehicles of the
International Standards Organization requested that its working body,
the Consultative Committee for Space Data Systems (CCSDS), develop an
archive standard to help preserve data derived from space
investigations. The CCSDS responded with a proposal to define an
archives reference model that was intended, among other things, to
address intermediate and indefinite long-term storage of digital data.
This proposal was precipitated in part by the growing needs for
long-term preservation of digital data from space investigations, an
incomplete understanding of digital preservation issues, and constant
changes in technology. Although the impetus for this proposal came from
the space data community, early on it was recognized that the effort cut
across all communities concerned with long-term access to digital
material. Consequently, participation was broadened to include social
science, arts, and humanities data libraries, libraries, archives, and
museums.

In June 1998 a conference sponsored by the National Aeronautics and
Space Administration, CCSDS, Johns Hopkins University Applied Physics
Laboratory, Committee on Earth Observation Satellites, and Research
Libraries Group was held at the United States National Archives and
Records Administration to further expose the OAIS model and to determine
interest in the development of additional broadly based archival
standards or best practices. The primary purpose of the conference was
to clarify language and concepts so as to make the model more
understandable and useful to a very broad archival community as the
reference model moves through the international standards arena with the
expectation of gaining CCSDS and ISO approval by December 1999.

In September 1998 version 4 of the OAIS Reference Model (available at
http://ssdoo.gsfc.nasa.gov/nost/isoas/us/overview.html) was released.
The OAIS Reference Model incorporates a functional model and a logical
model for archival storage that addresses most of the major components
of archival storage, albeit in language and terminology unfamiliar to
many archivists and records managers. For example, the model uses
\"ingest\" to describe what archivists and records managers would call
acquisition. Chapter 5 is entitled \"Digital Migration Perspectives\"
and it includes a definition of digital migration and a discussion of
specific methodologies that can be used to ensure long-term access to
spatial data. Digital migration is defined as the \"transfer of digital
information while intending to preserve it, within the OAIS. \" The
report identifies four primary instances of digital migration:
Refreshment, Replication, Repackaging, and Transformation. Of these four
instances of digital migration the only one that results in content
change of data is transformation in which the objective is to update the
digital data with more accurate or reliable digital data. The result of
digital migration transformation is a new version of the digital data
and any associated information.

The OAIS Reference Model is intended to serve the needs of the space
data community so it reflects specific concerns that are not easily
generalizable to the needs of the PTO without some modification in
terminology and concepts. The OAIS Reference Model correctly identifies
the transformed scientific data as a \"new version.\" However,
electronic patent and trademark case files must remain unrevisable so
transformation as it is defined would be inappropriate.

## DLM FORUM

In December 1996 the European Commission and the Member States of the
European Union organized a forum that brought together experts from
industry, research, public administration, and archives to discuss
archives services as an essential component of an information society.
One purpose of the forum, known as the DLM-Forum, was to review a set of
multidisciplinary guidelines on best practices to follow in defining
short and medium-term strategies of managing and preserving electronic
records. In 1997 the DLM-Forum published *Guidelines on Best Practices
for Using Electronic Information: How to Deal with Machine-Readable Data
and Electronic Documents* (Updated and Enlarged Edition). The guidelines
offer very useful information regarding the creation and maintenance of
electronic material, the conversion of paper documents to electronic
form, and the selection of file formats. Unfortunately, the only
guidance regarding long-term access to electronic records is their
conversion to a standard format. In addition, the guidelines treat
migration and conversion as synonymous terms.

# CONCEPTUAL FOUNDATIONS

A key factor in the development of a comprehensive long-term access and
migration strategy for electronic patent and trademark case files is a
sound understanding of the key issues and possible solutions. Many
archivists and records managers tend to view long-term access to
electronic records largely as a technical issue requiring technical
solutions, when in fact there are conceptual or definitional issues that
must be clearly understood before moving to technical solutions. This is
particularly evident in the way certain concepts (e.g.,\"conversion or
migration\" in 36 CFR §1234.22(3)) are synonymous or interchangeable
without taking into account that there may be significant procedural or
technical considerations that make them distinctively different. As
such, this section of the report discusses a number of key concepts or
terms in order to foster a clear understanding of the problems of
providing long-term access to electronic patent and trademark case
files.

## paper records, data files, and electronic records

A fundamental premise underlying this report is that the issues and
techniques involved with managing paper records and data files are
substantially different than those involved with managing electronic
records. What may be suitable for paper records or data files is not
suitable for electronic records.

**Paper Records**. Paper records exist as physical entities whose
structure, content, and context are inseparably linked together. This
inseparable linkage is manifested in a physical format (text, image, or
a spreadsheet), a numerical or color coded filing scheme, and physical
placement in a folder with other related records, to name only a few. In
contrast, data files are logical entities consisting of binary data (1s
and 0s) whose structure and content may exist independently of each
other.

**Data Files**. Like paper records, data files have structure and
content. However, the structure of data files is limited to a tabular
format and a data dictionary defines the content of a specific table or
combinations of tables. In order for the structure and content of a data
file to be manifested as a coherent table or combination of tables,
software must interpret the binary data, reconstruct the parts, and
render the record for display on a monitor or printer.

**Electronic Records**. Electronic records and data files share in
common the fact that they exist as logical entities consisting of binary
data (1s and 0s) whose structure and content may exist independently of
each other and are linked together for rendering by software. However,
the structure of electronic records is much more complex and rich in
that a variety of formats - text, image, vector drawings, spreadsheets,
tables, audio, and moving images - may exist in a single record or as a
linkage of files that comprise a record. In addition, electronic records
have a context of maintenance and use that is essential to being
admissible as evidence and, as such, whose integrity must be preserved
for their full retention life. Consequently, the life cycle management
of electronic records is a very complex task involving a number of
critical issues and techniques that are not associated with the
management of either data files or paper records.

## Authenticity and Reliability 

What constitutes authentic and reliable electronic records? Federal
Rules of Evidence 901 declares that an authentic document submitted for
admission as evidence is one that is what it purports to be.
Consequently, the trustworthiness of electronic records (which applies
as well to paper records) is derived from their ability to stand for the
facts they are about. Authenticity is derived initially from the context
of its creation, storage and use.

Reliable electronic records are those records that retain their
authenticity over time. \"Over time\" encompasses, among other things,
the circumstances of the initial transmission of electronic record as
well as preserving the integrity of the record during the period of use
and maintenance, including migration of the record for media renewal or
transfer to another system hardware or software or recordkeeping
application environment.

Electronic patent and trademark case files, of course, will not exist as
physical entities. Preserving their integrity will be particularly
challenging because digital information technologies make it relatively
easy for the context of use to be altered, either by accident or by
design, without leaving any visible evidence. With processible text,
digits can be transposed or the word in a sentence could be modified
slightly to give an entirely different meaning. Digital images can be
cut and pasted to create such realistic images that even experts may not
be able to detect the difference. Techniques and approaches that help
protect the integrity of electronic patent and trademark case files are
discussed in Section 6.1.

## electronic Recordkeeping functions

The primary purpose of an electronic recordkeeping functions is to
support storing, accessing, and preserving records as evidence that can
be used in carrying out legal, operational, and historical activities.
An electronic recordkeeping system or its equivalent functionality
should be distinguished by the fact that its contents have been retained
as unrevisable evidence of transactions as required for statutory and
regulatory compliance and accepted business practices.

Satisfying these recordkeeping functions could be attained as an
integral part of one or more primary patent processing AISs. However,
considering the very long year period of time (forty years for issued
patent case files, and indefinite for registered trademark case files)
that electronic records will be in the legal custody of the PTO, a
separate but integrally accessible electronic recordkeeping system could
potentially provide a more cost effective means of supporting these
preservation requirements over the long term.

These recordkeeping functions are designed to protect case files and any
associated records from loss, alteration, and deterioration so that they
may be accessed and used as trustworthy evidence as far into the future
as is necessary. To fully achieve these objectives these recordkeeping
functions must provide for the preservation of the integrity of
electronic case files so that over time they are readable, intelligible,
understandable, reconstructible, unalterable, and encapsulatable. This
means, among other things, that the AIS or external utilities must
capture metadata such as hash digests, CRCs, and the results of media
renewal and transfer for integrity audit purposes.

Because records in these patent and trademark case files would have
certain features, such as non-proprietary specific file formats (Task
Order Deliverable 98-03-08 *Assessment of File Formats to Support the
Life Cycle Management of Patent and Trademark Case Files*), the
electronic recordkeeping system must support all of the file formats
used in the patent and trademark examination process. In addition,
certain metadata that is captured by PALM, for instance, should be used
to populate the metadata profiles supported in the electronic
recordkeeping system and provision must be made to support this
interface. It is important to remember that records in an electronic
recordkeeping system may be required for evidence of transactions or may
contain reliable information that is useful for other purposes such as
historical analysis. Consequently, an electronic recordkeeping system
should support powerful search and retrieval functions that would
facilitate timely access.

## Technology Obsolescence 

Joseph P. Martino, a research scientist at the University of Dayton, has
suggested that it is useful to differentiate between a technology and a
technical approach. A technical approach, he writes is "a specific
technical means of solving a problem or performing a particular
function." For example, the open hearth and Bessemer processes are
different technical approaches to the technology function of steel
making just as vacuum tubes and transistors are different technical
approaches to the technology function of rapid switching of electrical
signals.

For the purposes of this study, technology obsolescence should be
understood as resulting from major changes in technical approaches that
supersede or displace established technical approaches. Data storage and
retrieval are computer technology comprised of storage media, storage
devices and storage systems software. Technology obsolescence occurs in
storage media when newer and better storage media (e.g., *6250* bpi
magnetic tape) displace older, established storage media (e.g., *1600*
bpi magnetic tape). The storage function continues, but the technical
solution changes. Technology obsolescence also occurs in operating
systems and software applications as vendors introduce products with new
functionalities. Many vendors attempt to mitigate technology
obsolescence by providing "backward compatibility" over several
generations of media and software..

There are three other dimensions of technology obsolescence that merit
consideration. First, the history of digital technological innovation
over the last four decades or so offers compelling evidence that
technological change is inevitable and irreversible. Second, vendors
tend to induce technology obsolescence through the introduction of new
products or modifications of existing ones to achieve or maintain a
competitive advantage in the marketplace. Third, marketplace
displacement does not automatically mean technology obsolescence.
Practically speaking, as long as current devices continue to function
properly and spare parts and systems maintenance are available, then
technology obsolescence has not occurred. Maximizing the life span of
old systems, however, only delays the inevitable.

## migration 

The definition of migration used in *Preserving Digital Information*
(Section 4.4 of this study)*,* which essentially means ensuring that
present and future users can retrieve, display, and otherwise use
electronic materials in the face of constantly changing technology, is
an improvement but is too broad. The definition includes copying and
reformatting digital storage media, replacement of storage devices, and
transfer of electronic records from one technology application to a
newer one with and without loss of record integrity. The complexity of
technical issues and the scope of human resources required to reformat,
copy, convert, and migrate records differ substantially and therefore
cannot be adequately conveyed by "migration."

Although the OAIS Reference Model definition of digital migration
follows the same general direction as that offered in *Preserving
Digital Information*, it makes much more explicit the specific
circumstances in which use of each of the four types of digital
migration (Section 4.8 of this study) is appropriate. Certainly, this is
a noteworthy contribution and expands our knowledge and understanding of
certain technical aspects of long-term access to electronic records.
However, from the archival science and records management perspectives,
the emphasis on the accuracy of space science digital data vis-à-vis its
authenticity or trustworthiness is undesirable in programs providing
long-term access to reliable electronic records.

While generally agreeing with the broader definitions set forth in these
two studies, this report takes a more specific approach in terms of the
actual functions required to carry out migration. The notion of a
long-term access strategy is defined as two primary activities: (1)
maintaining processible reliable electronic patent and trademark case
files through media renewal - reformatting and copying - and (2)
transferring reliable electronic patent and trademark case files from a
current dependency software to a newer one with no loss in their
structure, content, or context to a newer one as technology changes.

Transferring electronic patent and trademark case files shares with
media renewal the requirements for readable media, operational devices
to read the media, and target media and devices. It differs from media
renewal in that a specific software application path such as a target
technology platform with backward compatibility is required. As long as
the PTO continues to support technology upgrades and the introduction of
new technology platforms that support backward compatibility during the
scheduled PTO retention of electronic patent and trademark case files,
the mechanical aspects of transfer for electronic patent and trademark
case files should be fairly straightforward.

### Media Renewal - Reformat

As noted earlier, maintaining the processibility of reliable electronic
patent and trademark case files means ensuring that they can be read and
accurately interpreted by contemporary computers. Achieving this
objective of media renewal involves reformatting and copying. The
following section discusses reformatting and its role in media renewal.

The format of electronic patent and trademark case files (i.e., records)
involves both the internal representational or logical structure of the
1s and 0s (e.g., ASCII, EBCDIC, Unicode, or binary) and their encoding
for storage on a storage medium or transmission on a carrier. At its
simplest level, reformatting of electronic patent and trademark case
files occurs when there is an alteration in the underlying bit stream
but there is no change in their representation or intellectual content.
Typically, reformatting is associated with moving a bit stream from one
storage medium to a different one. For example, moving electronic patent
and trademark case files stored on 9 track 6250 bpi tapes to 18 track
3480 tapes constitutes reformatting because there is a change in the
physical carrier even though when the reformatted electronic patent and
trademark case files are rendered for viewing there is no alteration in
their appearance or content. Reformatting also can occur when there is a
change in the character code that represents the 1s and 0s but there is
no change apparent in the rendered material. Similarly, reformatting
records that are in Extended Binary-Coded Decimal Interchange Code
(EBCDIC) to ASCII or Unicode would cause a change in the coded
representation on a storage medium, even though there is no alteration
in the rendering of case files. Reformatting of electronic patent and
trademark case files is likely to occur in the following circumstances:

-   changing the physical carrier or storage medium

-   transforming the character code from Extended Binary Code for Data
    Interchange (EBCDIC) to American Standard Code for Information
    Interchange (ASCII)

-   replacing fixed-length records with variable-length records or vice
    versa

As a general rule, reformatting of electronic patent and trademark case
files can occur independently of the operational environment within
which they initially were created or maintained. To reformat electronic
patent and trademark case files, the following elements are required:

-   readable input storage media and operational drive

-   a computer-automated reformatting program

-   output storage media and appropriate drive

A computer reformatting or translation program, which typically is
available as a standard utility program, performs reformatting without
regard for whether the digital material consists of text files, bit map
image files, structured database files, and the like. In other words,
reformatting occurs without having to open the software application used
to create and maintain electronic patent and trademark case files.

### Media Renewal - Copy

The second instance of media renewal involves copying electronic
records. The term \"copy\" in the world of paper records generally is
understood to mean the duplication of the physical and logical
structures and intellectual content of an information object, as in the
case of a photocopy or a carbon copy. Diplomatics definitions of a
"copy" are very useful in this regard. In diplomatics, the term \"copy\"
has three different uses. The first use, "copy in the form of the
original," means that the copy has all of the same detail, including
ink, paper, date, addressee, and the like, of the original, but it is
produced at a later date. An \"imitative copy\" reproduces the content
and most of the form of an original as in a photocopy. Obviously, a
photocopy does not reproduce the ink and paper of the original but it
does capture the substantive structure of the original. A \"simple
copy\" is a transcription of the content of the original, but with the
loss of most, if not all, of the detail of the original. A simple copy
does not carry the same weight of trustworthiness as an imitative copy.

In the proposed PTO electronic patent and trademark recordkeeping
application environment, what would it mean to copy an electronic case
file or to copy the contents of a hard drive or a tape? The objective of
copying electronic patent and trademark case files is to maintain their
readability by moving them from old storage media to new storage media
with the same format specifications (e.g., number of tracks and signal
encoding) without any loss in structure, content, and context (i.e., an
imitative copy). Essentially, in copying electronic patent and trademark
case files there is no alteration or change in the underlying bit stream
pattern. Copied electronic patent and trademark case files would be
"binary twins," to use Ulf Andersson's phrase, because there is an exact
replication of the bit stream of 1s and 0s. The requirements for copying
electronic patent and trademark case files are:

-   readable input storage media and operational drive

-   computer duplication program

-   output storage media and appropriate drive

A standard computer duplication or copy utility program performs the
copy work without regard for whether the digital material is text files,
bit map image files, structured database files, and the like. In other
words, just as in the case of reformatting, electronic patent and
trademark case files may be copied without opening the electronic
recordkeeping application by which they are maintained. To summarize,
copying a single electronic case file or many electronic case files
means that an exact duplication of the bit stream that gives rise to
their external and internal structure and intellectual content is
reproduced.

### Transfer

The second migration methodology of ensuring that reliable electronic
patent and trademark case files remain usable and accessible over their
authorized retention period involves the transfer of processible
electronic patent and trademark case files from a current software
dependency environment to a newer one with no loss in structure,
content, or context. There are three aspects of transfer that should be
kept clearly in mind.

**Software Dependency** - the act of transferring electronic case files
in one software dependency application environment, such as an
electronic records management system or bit map image
compression/decompression, to a new technology environment is executed
within the source software application or the target software
application. This requires little or no user involvement because either
the source software can transfer the digital material to a neutral
format that the target software recognizes and can accept, or the target
software recognizes the source software and automatically executes the
transfer process. which is usually called \"backward compatibility.\" An
example of the first instance would be saving WordPerfect documents in
Rich Text Format (RTF), which is a platform neutral format, and then
opening these documents in an Office 97 environment. An example of the
second instance would be the automatic transfer of electronic documents
that occurs when upgrading from Microsoft Word 6.0 to Office 97.

**Change in Bit Stream** - during transfer, the underlying bit stream
undergoes some modification or change. This is clearly evident when
decrypting electronic documents or decompressing bit map images.
Although it is not as obvious, there is a change in the underlying bit
stream of electronic documents because each native application software
embeds non-printing ASCII characters that denote specific processing
instructions, such as a hard return, end of line, and bold type, to name
only a few. As a general rule, transfer differs from reformatting
because it occurs either within the framework of the software
application environment where electronic documents are maintained or
within the target application software.

**Transfer Instances** - typically, transfer occurs when any of the
following take place:

-   Encrypted documents are decrypted or compressed bit map images are
    decompressed.

-   The software environment is upgraded to current technology.

-   A new software application environment is installed.

    Because transfer occurs within a specific software dependency
    environment, it requires access either to the old application
    software or to the new application software. The technical
    requirements for transferring electronic patent and trademark case
    files are:

-   A readable input storage media and operational drive

-   An operational source software or target software environment

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-   An Established output storage media and appropriate drive

# long-term access strategy

The Patent and Trademark Office is legally obligated to ensure that
electronic patent and case files are usable and accessible for forty
years after their issuance and that registered electronic trademark case
files are usable and accessible for an indefinite period of time until
they are cancelled or expire.. In complying with this legal obligation
the PTO faces two major challenges: the limited useful life of digital
storage media and a constantly changing digital technology. The limited
longevity of digital storage media means that over time the PTO must
protect electronic patent and trademark case files from loss or
deterioration and periodically move them to new storage media. The
second challenge will be a constantly changing technology that will
require the PTO to upgrade selected hardware components such as
disk/tape drives and recordkeeping applications and to replace existing
electronic recordkeeeping functions with ones that are designed for a
new technology platform.

## electronic recordkeeping functions

This section discusses six electronic recordkeeping functional areas
that are required to support long-term preservation and access to usable
and reliable electronic patent case file records. These six functional
areas cover the requirements of being:

-   Readable

-   Intelligible

-   Encapsulated

-   Reconstructible

-   Understandable

-   Unaltered

### Readable

Readable electronic patent and trademark case files mean that the bit
stream comprising patent and trademark case files can be processed on
the computer system or device that initially created it, the computer
system or device that currently stores it, or the computer system or
device that will be used to store the digital information in the future.
This is a fundamental requirement because unreadable electronic patent
and trademark case files serve no useful purpose. There are three areas
that can affect the readability requirement

*Environment*. Non-readability of electronic patent and trademark case
files may occur in two different ways. One is the result of exposure to
a hostile storage environment. All of the storage media for digital
records used in the past and present share a common vulnerability to
poor environmental storage conditions. Magnetic storage media are
vulnerable to fluctuations in temperature and humidity and extremes, as
well as to stray magnetic fields, and they therefore require a
controlled storage environment to ensure a maximum longevity. Optical
digital storage media are similarly vulnerable to high temperature and
high humidity.

ANSI/PIMA IT9.23-1998: Imaging Materials - Polyester Base Magnetic
Tape - Storage standard recommends a stable temperature of 10° C (50° F)
and a relative humidity (RH*)* of 20% as the coolest and driest
conditions for preserving storage media as long as possible. Research
studies conducted at the National Media Lab by John Van Bogart suggest
that these same storage conditions also are appropriate for optical
storage media. These are ideal conditions that may be difficult for some
storage repositories to achieve. In this context, John Van Bogart
recommends "equivalent\" storage conditions: 20º C and 30% RH, or 15º C
and 40% RH, or 10º C and 50% RH. \"In humid climates, such as Florida,
it would be more economical to apply storage conditions of 10º C and 50%
RH. In arid climates, such as Arizona, it would be more economical to
apply conditions of 20º and 30% RH.\" Additional protection is attained
through air filtration to remove atmospheric pollutant gases (chlorine
and sulfides) that are likely to be present in large urban environments.

*Periodic Readability Checks.* Maintaining an appropriate and stable
storage environment for electronic patent and trademark case files
should be supplemented by periodic checks of randomly selected storage
media or files to ensure that no catastrophic media failure has occurred
or may be on the verge of occurring (36 CFR 1234.30(g)(4)). This, of
course, is an early detection procedure that merely warns of potential
damage. Nonetheless, a program to check annually a statistical sample of
electronic patent and trademark case files for data dropouts and other
potential readability problems is an essential part of ensuring the
readability of electronic records.

*Media Obsolescence*. Attaining the predicted life expectancy of digital
storage media is important, but it cannot resolve a more fundamental
aspect of maintaining the readability of electronic records, which is
manifested in media obsolescence. Media obsolescence occurs when the
storage device (e.g. a tape or disk) is physically incompatible with the
available computer hardware and therefore cannot be read. Media
obsolescence seems inevitable because historically advances in storage
technology have introduced changes in the way the underlying bit stream
that composes digital material is physically represented. Consequently,
older storage media often are incompatible with those used in the
present, and surely will be incompatible with those developed in the
future. There is no \"final solution\" to media obsolescence. The most
effective way to mitigate its impact is through media renewal that
consists of either periodically reformatting or copying electronic
records on old media to newer media.

### Intelligible 

Any computer today can recognize a binary bit stream of 1s and 0s
generated by any other computer. However, a binary bit stream is not
intelligible unless it carries information about what the 1s and 0s
represent that a computer can recognize and interpret for processing
purposes. The intelligibility of electronic records, therefore, is a
function of information about what a bit stream represents and the
operating software\'s capacity to take appropriate action based upon
this information.

*Bit Map Images.* The intelligibility of bit map images is a case in
point. The 1s and 0s of a bit map image carry no intelligibility.
However, the file header that accompanies a bit map image contains
information, such as byte order and the compression algorithm used,
which is absolutely essential to a computer\'s ability to render the
image on a monitor or a printer. If these two pieces of information are
absent, most, if not all, readable electronic bit map images will not be
intelligible.

*Text*. The 1s and 0s that comprise a textual electronic patent case
file also lack intelligibility. Consider, for example, a memorandum
composed in Corel WordPerfect 8.0. The document name, which is part of
identification, has a three-letter extension \-- WPD \-- that tells a
computer that this is a WordPerfect Document and the 1s and 0s are to be
interpreted as ASCII code and rendered as human-readable on a monitor or
a printout. A document name with a WPD extension can be read by any
computer that runs WordPerfect 8.0, or by other word processing software
such as Microsoft Word 6.0, which can convert a document with a WPD
extension for processing. Any operating system and word processing
software that recognizes 7-bit ASCII can process a document name with
the TXT extension, which denotes ASCII text, without any embedded word
processing instructions or code. What makes textual electronic records
intelligible is located in metadata, not in the underlying bit stream of
records as such.

### Encapsulated

An encapsulated electronic patent case file means that all of the
information associated with a specific electronic patent case file, such
as metadata, content, and linkages to multimedia, exists as a single
logical or physical entity. The distinction between a logical and a
physical entity is important because techniques such as object linking
and embedding (OLE) and hypertext create dynamic records that consist of
pointers or linkages to files, which may exist on multiple media and
servers and can only be used with specific software. Logical
Encapsulation (e.g., MS WORD object linking and embedding) can be
maintained and preserved in a single technology generation, but becomes
increasingly difficult to achieve this across multiple technology
generations.

*Logical Encapsulation.* Suppose, for example, that an electronic patent
case file includes text, vector graphics, bit map images, and digital
audio signals. In an operational environment the text portion of
electronic records might exist on one file server with pointers to an
image file server, a vector graphics file server, and a digital audio
file server. All of this is would be transparent to users of electronic
patent and trademark case files under review or as yet unpublished. When
an image file server is upgraded, a message with this information is
sent to the host file server and the pointers and links are updated as
necessary. Maintaining multiple file servers as part of a long-term
access strategy adds several layers of complexity in configuration
management. Furthermore, if all of the file servers are not regularly
upgraded the risk increases of not being able to reconstruct all of the
components of electronic records.

*Physical Encapsulation.* In contrast to logical encapsulation, physical
encapsulation integrates all of the logical components of an electronic
patent case file into a single wrapper or container. Physical
encapsulation can help reduce the complexity of multimedia electronic
records. Physical encapsulation, however, is not without its own
problems. For example, the task of transferring, say, vector graphics
material to upgraded or new vector graphics software could require a
time intensive computer search of each electronic patent case file in
the recordkeeping system to identify such material. One way of
minimizing this problem would be to create a surrogate or profile about
each electronic patent case file, as described below, that includes
descriptive information about the different types of information
representation (e.g., ASCII text, vector graphics, or bit map images)
and other features that could be searched to identify components of case
files that must be updated.

*Standard \"Open\" File Format*. The use of a standard open file format
in encapsulation can mitigate the effects of application software or
operating system dependence, which ranks high on the list of impediments
to long-term access to electronic records. This form of encapsulation
could employ Extensible Markup Language (XML), which is the most
technology-independent solution available today to describe complex
electronic patents case files and associated metadata that are essential
to long-term access. A Document Type Definition (DTD) can be developed
that would identify the logical structure of encapsulated electronic
patent and trademark case files. For example, a DTD could be developed
for electronic patent and trademark case files that delineates the
hierarchical structure of patent and trademark case files, identifies
multimedia material such as vector drawings and bit map images, and
provides an audit trail of all actions taken to support long-term access
to reliable electronic patent and trademark case files. One feature of
this audit trail could include the capture of CRCs generated prior to
after completion of processing (e.g., copying). All of this information
would fall under a general heading of metadata to support long-term
access to reliable electronic patent and trademark case files. Task
Order Deliverable 98 -03 -11Metadata Requirements For Long-term Access
and Retention of Electronic Patent and Trademark Case Files proposes a
metadata model for encapsulating reliable electronic patent and
trademark case files.

### Understandable

In order for electronic patent and trademark case files to be
understandable they first must be intelligible to both a computer and
humans. Electronic material is intelligible to humans that conveys
information. One example would be a bit map record that displays the
image of an airplane that humans would recognize but that a computer
could recognize only with the assistance of very powerful artificial
intelligence software. Another example would be ASCII text that includes
discrete words, sentences, and paragraphs, which convey information that
humans could recognize.

*Context.* In both examples, however, the larger issue is what the bit
map or textual material means. The meaning of an electronic record is
not determined solely by its words; meaning is also determined by the
context of creation and use. As information scientist David C. Blair
puts it: "The meaning of . . . a document can only be understood in its
relation to other documents which, together, constitute an institutional
activity like making a contract, evaluating the market for a product,
\[or\] assessing performance." (*Language and Representation in
Information Systems* (1990): pp. 210-211)

*Role of Metadata.* Ensuring the understandability of electronic patent
and trademark case files differs sharply from ensuring the
understandability of paper patent and trademark case files. Unlike paper
records, which typically convey the context of creation and use in the
physical characteristics of the records, the context of creation and use
of electronic records are usually linked logically rather than
physically. These logical linkages can include identification of both
the business processes that led to the transaction and the participants
in the transaction. This context of creation and use also involves
relationships among other records that can be captured in a variety of
ways, including a reference code in a document profile to other records
dealing with the same issue, or a classification code that links records
relating to the same transaction and related transactions. This captured
information is in fact metadata \-- electronic patent and trademark case
files that lack it may not be fully understandable.

### Reconstructible 

The preservation requirement for reconstructible electronic patent and
trademark case files is very important because it goes to the heart of
their trustworthiness over time. Reconstructiblity means that electronic
records can be rendered so that they have the \"same logical and
physical structure and intellectual content\" as when initially stored.
Thus, reconstructibility means that those internal and external features
of electronic patent and trademark case files that were required for
them to be complete and effective during the filing, review and
examination process are also retained for the authorized retention
period. In this sense, fully reconstructed renderings of electronic
patent and trademark case files constitute "imitative copies," which
also helps preserve the overall authenticity and trustworthiness.

*Consequences of Simple Copies.* Of course, the content of electronic
patent and trademark case files can be reconstructed as plain ASCII
text, but archival science would then treat these as "simple copies,"
which are nothing more than transcriptions whose reliability would be
significantly diminished because some features that plain ASCII text
cannot support would be lost. Of course, the authenticity of \"simple
copies\" can be reestablished as new records. This would entail
capturing considerable detail about the scope of the information that
was lost.

### Unaltered 

Under Rule 901 of the Federal Rules of Evidence, authentic electronic
patent and trademark case file records are what they purport to be \--
that is, trustworthy case files whose structure, content, and context
have not been altered, changed, or otherwise corrupted. Historically,
protecting paper records from alteration or change was made possible
through transfer of the records from the custody of their originators or
creators to an independent organization or individual whose mission was
to protect this material from change or alteration, such as the National
Archives. This protection involved an appropriate storage environment,
care and handling of the records, and controlled access to the records.

*The Challenge.* Unlike paper patent and trademark case files,
electronic patent and trademark case files are susceptible to
"alteration and corruption" in a hostile storage environment, so
maintaining a stable storage environment is essential to protecting them
from any loss of information. Also, electronic patent and trademark case
files can be altered without leaving any physical evidence. Furthermore,
electronic patent and trademark case files may be copied and reformatted
periodically to new storage media, which introduces a risk of loss or
corruption either by design or by accident. The same technology that
makes it relatively easy to create, use, store, and retrieve electronic
patent and trademark case files also has the potential for making it
possible for someone to "reinvent reality" without leaving any visible
evidence of this activity. How then is it possible to ensure that
electronic patent and trademark case files remain unaltered over time?

#### Read Only 

There are several techniques to guard against this that rely upon
digital information technology itself. The first employs a security
feature in the electronic recordkeeping software that permits \"read
only\" access to electronic patent and trademark case files. The net
effect of this procedure is that users would only be able to download a
copy of an electronic patent case file but could not save it under its
existing name or a new one in the electronic record keeping system. This
has the practical effect of ensuring that in electronic sense custody of
electronic patent and trademark case files remains intact.

#### Cyclical Redundancy Checksum

The second electronic technique is called "Cyclical Redundancy
Checksum\" (CRC), which typically is used in telecommunications to
ensure error-free transmissions. In this technique the number of bits in
a packet or Frame Check Sequence (FCS) is divided (using a non-carrying
division process) by a pre-defined 16-bit or 32-bit polynomial and the
resulting computation is added to the FCS as a CRC. At the end of the
transmission of the packet or frame, the FCS is divided by the same
16-bit or 32-bit polynomial. If the two CRCs match then there is a high
probability that no error has occurred. The CRC has a high probability
(99.98 per cent) of detecting all single and multiple bit errors (burst
errors) that do not exceed 16 bits.

Appending a separate CRC to the frame sequences that comprise an
electronic patent case file can also be used for internal processing.
CRC use during media renewal (copy and reformat) and transfer can verify
that no errors occurred. With the appropriate software, the resulting
CRC values for a patent case file could be appended to or embedded in a
record or aggregation profile as part of a history profile or
encapsulated as metadata that documents error-free processing. Of
course, each time reformatting or transfer occurs, a different CRC would
be computed because each one of these activities involves a change in
the underlying bit stream. Subsequently, if it becomes necessary to
provide a copy of one or more electronic records, a new CRC could be
computed and compared to the most recent CRC in the history profile. A
match would verify that no change has occurred in the underlying bit
stream while in storage.

####  Hash Digest

The third electronic technique that can help ensure the reliability of
electronic records is called one-way hashing. A one-way hash function
employs an algorithm that compresses a digital object (e.g., text of a
book, report, or letter, image, audio, etc.) into a fixed-length record.
The two most widely used hash digest algorithms -- MD5 and SHA -- reduce
a source "document" of any size to 128 and 160 bits, respectively. It is
called a one-way hash because the hash digest itself is irreversible: it
is not possible to reconstruct the original material from the hash
digest. No matter how many times a digital material is "hashed,"
identical hash digests of the source material will be produced as long
as no change has occurred. Thus, computing a second hash digest of one
or more logical components of an electronic patent case file or for the
complete case file itself and comparing it with the original hash digest
will disclose if there was any change in each logical component or the
entire case file. However, when the underlying bit stream is altered, as
in the case of reformatting and transferring electronic patent and
trademark case files, a new hash digest must be computed and added to a
history profile.

## reformatting, copying, and transferring 

As discussed earlier, the general concept of "migration" is addressed in
this report at the more detailed levels of reformatting, copying and
transferring of electronic patent and trademark case files.

One of the fundamental issues a long-term access strategy for reliable
electronic patent and trademark case files must address is ensuring
their processibility and transferability during the time the are in the
custody of the PTO. These two objectives can be achieved through media
renewal (reformatting or copying) and transferability, which involves
the \"automatic\" transfer of electronic case files or individual
components of a case file (e.g., bit map images) from a current
dependency software application to a new one.

There are four questions associated with media renewal and transfer that
the implementation of a long-term access strategy for reliable
electronic patent and trademark case files should take into account.
They are: 1) What storage medium to use? 2) When should the storage
media of electronic patent and trademark case files be renewed and when
should they be transferred to a new recordkeeping system?; 3) How can
the authenticity of reformatted, copied, and transferred electronic
patent and trademark case files be guaranteed? and 4) How can the
security of electronic patent and trademark case files in an electronic
recordkeeping system be protected from intentional damage,
deterioration, and catastrophic failure or natural disaster?

### What Storage Medium to Use? 

The selection of a storage medium for long-term storage of electronic
patent and trademark case files is critical because this will affect the
usability and accessibility of the case files and the cost effectiveness
of the electronic recordkeeping application environment. Although
Federal agencies have some discretion in the selection of a storage
medium for long-storage of permanent records, CFR 1234.30(b)(1)-(7)
identifies seven \" . . . factors that shall be considered before
selecting a storage medium or converting from one medium to another.\"
The seven factors are:

1)  The authorized life of the records, as determined during the
    scheduling process;

2)  The maintenance necessary to retain the records;

3)  The cost of storing and retrieving the records;

4)  The records density;

5)  The access time to retrieve stored records;

6)  The portability of the medium (that is, selecting a medium that run
    on equipment offered by multiple vendors) and the ability to
    transfer the information from one medium to another (such as from
    optical disk to magnetic tape or disk); and

7)  Whether the medium meets current applicable Federal Information
    Processing Standards

It should be kept in mind that the PTO has a major investment in
technology, particularly in storage media and the devices to read the
media and may have additional experience and expertise that most likely
is not reflected in 36 CFR 123.30 (b)(1) (7). Nonetheless, Factors (4),
(5), and (6) are likely to be consistent with the PTO experience and
merit brief discussion. Factor (4) can be interpreted as high storage
density. Factor (5) can be interpreted as a high data transfer rate.
Factor (6) can be interpreted as substantial market penetration through
multiple vendors and conformance to interoperability requirements.

Application of these three media selection criteria would point toward
selection of a magnetic storage medium that has:

-   A very high storage capacity per unit of media - on the order of ten
    to fifty gigabytes.

-   A data transfer rate in the range of 5MB or more per second.

-   A substantial market presence with multiple vendor sources, both
    media and appropriate drives.

-   A high probability of providing backward compatibility over multiple
    media generations.

-   Incorporation of a storage management infrastructure, including
    copy, reformat utilities, that allow for ease of media renewal.

### When to Reformat, Copy, and Transfer?

When is the best time to reformat or copy electronic patent and
trademark case files to new media or transfer them to a new electronic
recordkeeping application environment? There are three instances where
reformatting is an appropriate action: (1) when the electronic case
files are moved into the electronic recordkeeping application
environment; (2) when the storage media or drives used in the electronic
recordkeeping application environment are upgraded; (3) when a
pre-established point in the life expectancy is reached for of the
storage medium or drive. The time for copying electronic patent and
trademark case files is when they are ten years old, which is mandated
by 36CFR 1234.30(g)(5). The point in time at which electronic case files
are transferred to a new electronic recordkeeping application
environment should be determined by the necessity to implement a new
electronic recordkeeping application environment that is in the
technology mainstream, improved cost-effectiveness that the new
technology platform would bring, and the technical and financial
resources available to the PTO.

### How to Ensure Trustworthiness?

The trustworthiness of electronic patent and trademark case files could
be challenged when they go through several cycles of being reformatted,
copied, or transferred and the process is inadequately documented.
Suppose that a body of electronic patent and trademark case files goes
through three cycles of reformatting and no or limited documentation
exists for how these processes were carried out. How can users be
confident that these processes did not introduce changes \--accidental
or intentional \-- in one or more case files?

Consider a specific situation in which electronic patent and trademark
case files have been reformatted several times, but there is little or
no documentation of the procedures followed. After the third cycle
\"errors are discovered. Were the errors in the patent and trademark
case files when they were moved into the electronic recordkeeping
application environment or did the errors occur during reformatting? If
the latter, when did they occur? What was the nature and scope of the
errors? Was it the result of media failure? What corrective action, if
any, was taken?

These questions go to the heart of the trustworthiness of electronic
patent and trademark case files over time. To ensure the long-term
trustworthiness of electronic patent and trademark case files, the PTO
should have a written quality control policy in place that mandates
verification of the accuracy of all reformatted, copied, and transferred
electronic patent and trademark case files. The procedures for
implementation of this policy should include thorough and complete
documentation of all the steps followed, including identification of the
individual who actually executed the specific process, the date it
occurred, the format of the data, generation of CRCs or hash digests to
confirm that no bits were lost or corrupted, and visual comparison of
several of the \"old\" case files with the ones reformatted, copied, or
transferred. Inaccuracies or unrecoverable errors should be identified.
The block location of any unrecoverable errors should be identified. In
addition, a third party should review these actions and concur that they
were carried out in accordance with established procedures. This
documentation should be clearly identified with links to the specific
case files and treated as metadata that merits the same care as that of
the case files themselves.

### How to Protect From Alteration or Loss?

The fourth and last question to be considered is how to protect
electronic patent and trademark case files from alteration or loss.
Electronic storage media are vulnerable to human intrusions and
catastrophic failure or natural disaster. The threat of human intrusion
can be minimized by instituting access controls that permits \"read
only\" retrieval and viewing for authorized individuals. Housing
electronic storage media in a secure vault with controlled access
provides another level of protection. In the event of catastrophic
failure and natural disaster (such as fire or a flood) there would be
little difference in the vulnerabilities of optical or magnetic media.
The best security against loss of electronic patent and trademark case
files through a catastrophe is keeping a second copy, called a vital
records or backup copy, at a different geographical location (36 CFR
1234.30(f)). Given the cost of storage media and data transfer rate of
optical vis-à-vis magnetic media, a magnetic backup is less costly. One
variation on the backup security copy is to use one type of digital
storage medium for primary storage and a different digital storage
medium for backup storage. This can minimize the risk of loss of records
if a particular storage medium suddenly and unexpectedly becomes
obsolescent.

## non-proprietary standards

A fundamental premise underlying this long-term access strategy is that
the implementation activities associated with it should be designed to
take advantage of non-proprietary digital information technology
standards that largely are products of the drive toward open systems
over the last decade or so. Open systems, of course, imply standards to
which individual products conform and thereby provide relatively stable
market solutions that are scalable. Non-proprietary information
technology standards are especially important because they help support
open systems, applications connectivity, and document portability, which
in the long run may significantly enhance the prospects of long-term
access to electronic patent and trademark case files. Vendors have a
vested interest in retaining their customer base and therefore are
likely to continue to support and develop products that are compatible
with existing ones. Under this rubric, as new technologies are
introduced over time, new standards will be established that link the
new technologies with the old technologies. Adhering to non-proprietary
information technology standards that promote interconnectivity and
portability plays a key role in the long-term access strategy this study
proposes. Because these standards minimize and in some instances may
eliminate data exchange and computer incompatibilities, they can support
interoperability and backward compatibility. Interoperability and
backward compatibility are crucial to ensuring the long-term
processibility and transferability of electronic patent and trademark
case files.

The non-proprietary information technology standards for file formats
are discussed in the report entitled *Assessment of File Formats to
Support the Life Cycle Management of Patent and trademark case files*
(Task Order Deliverable 98-03-08).

A cautionary note regarding information technology standards is needed,
however. Standards reflect current technology and inevitably new
standards will emerge to replace old ones. Therefore, continuous and
careful attention must be given to the procurement of new hardware and
software to ensure that they conform to non-proprietary standards that
support application connectivity and document portability. The PTO
should simultaneously be aware of the development of new technologies
and standards that may supplant choices being made today.

# recommendations

This section proposes six recommendation areas for consideration by the
PTO to support long-term access to electronic patent and trademark case
files during PTO\'s custody. These guidelines are informed by the
following considerations:

-   the importance of a clear written policy statement regarding
    long-term access to reliable electronic patent and trademark case
    files

-   the importance of preserving the reliability of electronic patent
    and trademark case files

-   the need for clearly defined quality control procedures

-   the actual practices for the PTO to follow in providing long-term
    access to reliable patent and trademark case files

-   the importance of using non-proprietary standards in facilitating
    long-term access

## General policy

A long-term access policy for electronic patent and trademark case files
is important because it is an organizational commitment rather than an
individual one. It ensures the trustworthiness of electronic patent and
trademark case files as evidence, which can be achieved in part by
consistent and uniform treatment and handling. Another reason for
developing a formal access policy is to prepare for evidentiary
questions raised in many legal proceedings: were the records kept and
used in the normal course of business. This is typically established by
a written policy statement.

A sound policy statement should specify the objectives of the program
and the circumstances under which media renewal (reformatting, and
copying) and transfer activities are initiated, and the types of
compliance audits that will take place. Another issue that a policy
statement should address is whether the PTO Records Management staff in
conjunction with staff of the Chief Information Officer will be
responsible for ensuring that all of the actions necessary to support a
long-term access strategy are carried out. A policy statement that
articulates the boundaries within which specific actions may be
undertaken can help establish the grounds for future users to have
confidence that the electronic patent and trademark case files in fact
are trustworthy

> **RECOMMENDATION**: **Develop a PTO written policy for long-term
> access strategy for electronic patent and trademark case files that
> addresses the following:**

-   **An agency commitment to comply fully with the CFR requirement to
    ensure that patent and trademark case files remain usable while they
    are in the legal custody of the PTO**

-   **Protection of the integrity of electronic patent and trademark
    case files regardless of changes in technology**

-   **Media renewal and records transferability as a means of ensuring
    the long-term usability of electronic patent and trademark case
    files**

-   **Internal compliance audits for conformance with all policy and
    procedures**

-   **Oversight of the life cycle management of electronic case files by
    the PTO Records Officer in coordination with CIO staff**

##  QUALITY CONTROL

Archival science and the Federal Rules of Evidence give the greatest
weight of trustworthiness to records that are created and used in
accordance with established processes and procedures. This is a form of
quality control that should be carried over into the preservation of
electronic patent and trademark case files. Whatever actions the PTO
takes to ensure long-term access to electronic patent and trademark case
files should be carried out in accordance with written PTO policies and
procedures that will need to be developed. Because the objective of such
procedures is to ensure the reliability of electronic patent and
trademark case files, the records generated as a result of carrying out
quality control procedures should be placed in an encapsulated wrapper
(as metadata) that contains the associated case file. This will help
ensure that documentation about quality control activities will be
maintained with the same care and concern as the patent and trademark
case files. Among the quality control techniques to be considered are
comparisons of Cyclical Redundancy Checksums, hash digests and bit/byte
comparisons which assure that no bits or bytes have been lost during
media renewal or transfer. To ensure compliance with these procedures
periodic quality control audits should be conducted.

> **RECOMMENDATION: Develop written quality control procedures that take
> into account the following:**

-   **Documenting, and storing as metadata, any action taken to
    facilitate long-term access to electronic patent and trademark case
    files**

-   **Inserting documentation records into the encapsulation wrapper
    that contains each electronic patent case file**

-   **Conducting scheduled quality control audits**

## ELECTRONIC RECORDKEEPING FUNCTION

It will be recalled that the discussion of the recordkeeping function in
Section 5 took note of the fact that an AIS could serve this purpose as
long as it supported patent case file preservation requirements for
capture of relevant metadata that documents all actions taken to ensure
the processibility and transferability of patent and trademark case
files. That same discussion also suggested that at some point in the
future an integrated, stand alone, electronic recordkeeping system could
be a more cost effective means of supporting these preservation
requirements and capture of metadata, especially considering the period
of time that electronic records will be in the legal custody of the PTO.

> **[RECOMMENDATION]{.underline}:** **Develop and implement
> recordkeeping functions that can be implemented within an AIS or as
> part of a stand alone recordkeeping system that supports:**

-   **Preservation of electronic patent case file integrity and
    authenticity**

-   **Acquisition and preservation of all metadata identified in Task
    Order Deliverable 98-03-11.**

-   **Retrieval of electronic case files based upon a data elements
    (properties) in profile metadata or full text**

-   **Encapsulation of all components of an electronic case file**

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```
-   **Utilization of all file formats employed in the filing, review,
    examination, issuance, maintenance, and preservation of electronic
    patent and trademark case files**

-   **Retrieval of electronic case files based upon a data elements
    (\"properties\") in profile metadata or full-text search**

```{=html}
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```
-   **Verification of audit trails of decisions and actions taken to
    ensure long-term access to electronic patent and trademark case
    files**

-   **Expansion of profile metadata to include information useful for
    preservation purposes, such as a history use file that contains
    specific documentation (e.g., CRCS or hash digests) generated during
    the reformatting, copying, or transferring of electronic case
    files**

## reformat, copy, And transfer 

Electronic patent and trademark case files must remain unaltered and
usable, despite changes in information technology. In order to address
this requirement, a long-term access strategy is proposed that includes
a component to ensure the processibility of electronic patent and
trademark case files in a current electronic recordkeeping environment
and their transferability from this dependency application environment
to a new one. The specific means proposed for achieving these objectives
are media renewal, which consists of reformatting and copying electronic
patent and trademark case files, and transfer.

**[RECOMMENDATION]{.underline}**: **Develop and implement procedures for
reformatting, copying, and transferring electronic patent and trademark
case files that include the following:**

-   **Reformat electronic case files when new storage devices or media
    are utilized**

-   **Copy electronic patent and trademark case files at the time they
    are moved into the electronic recordkeeping application
    environment**

-   **Copy electronic patent and trademark case files every ten years
    (36 CFR 123430\[g)(5) if magnetic tape is the storage medium**

-   **Copy electronic patent and trademark case files when the annual
    readability sample discloses ten or more temporary or read "errors"
    on a specific storage medium**

-   **Transfer electronic patent and trademark case files to a
    technology platform when the current software is upgraded or a new
    electronic records management application environment is installed**

-   **Ensure the reliability and integrity of reformatted, copied, and
    transferred electronic patent and trademark case files by employing
    a strict quality control procedure that may include bit/byte
    comparisons and comparisons of hash digests and Cyclical Redundancy
    Checksums (CRC)**

-   **Document fully all actions taken when reformatting, copying and
    transferring electronic patent and trademark case files and include
    this information in the metadata associated with each case file**

-   **Create two copies of electronic patent and trademark case files at
    the time of reformatting, copying, or transfer and store one copy at
    an off-site location.**

## physical security

Protecting the physical security of electronic patent and trademark case
files from alteration, change, or loss should be a critical component of
the mission of a PTO storage repository in which electronic patent and
trademark case files are stored. Achieving this objective involves
several separate but related tasks.

One aspect of physical security is using a storage facility with
controlled access. This means that access to the facility is limited to
authorized staff and a record (sign in/out log) is kept of the date,
time, and identity of each person who enters it. A senior manager should
review this log periodically to verify staff compliance, and the log
itself should be retained as evidence of the storage repository\'s
compliance with is own policies.

The storage repository should be located where the threat of a natural
disaster such as a flood, fire, or earthquake is minimal. The storage
repository should include a fire detection alarm system as well as a
water sprinkler fire suppressant system. Individual storage media should
be sealed in polyethylene bags for protection from water damage when the
water sprinkler system is activated. A full-scale disaster recovery plan
should be in place that can be quickly implemented.

If a magnetic storage medium is selected for long-term storage of
electronic patent and trademark case files, its vulnerability to
magnetic fields must be taken into account. The actual storage
repository should be located away from large, heavy duty electric motors
(e.g., high-capacity air conditioning systems), generators,
transformers, and electrical power lines carrying high current loads
because unless they are magnetically shielded they can emit a strong
magnetic force. Signs should be posted warning individuals entering the
storage repository that all magnetic devices are prohibited and failure
to comply will result in severe penalties. Even though a distance of 76
mm (3.0 inches) is likely to protect magnetic media from erasure emitted
by most electric devices that may be required in a storage repository,
it would be prudent to keep electric motors and similar devices at least
two feet from magnetic storage media. There is no danger of erasure when
magnetic storage media themselves are stored close together.

There is no guarantee that any one or all of these proposed approaches
will provide full protection of electronic patent and trademark case
files from alteration, change, or loss. Consequently, the PTO storage
repository should have a recovery alternative in place that can provide
protection in the most dire of circumstances. A \"fail safe\" recovery
alternative is to maintain at a second site, preferably in another
geographic area, a backup \"mirror\" copy of all electronic patent and
trademark case files in the storage repository. Of course, some
electronic patent and trademark case files might be deemed so important
to warrant having another \"mirror\" copy at a third site. This backup
\"mirror\" copy could be used to restore any electronic patent and
trademark case files that may have been lost or corrupted. This
restoration would have to be fully documented and included in the
actions that have been taken to ensure the authenticity of the patent
and trademark case files.

> **[RECOMMENDATION]{.underline}**: **Develop written physical security
> protection procedures that take into account the following:**

-   **Maintaining a controlled access storage facility and monitor
    compliance with access control procedures**

-   **Locating the storage facility in an area where the threat of a
    natural disaster is minimal**

-   **Creating a disaster recovery plan**

-   **Adhering to the recommendations of *NBS Special Publication
    500-101 Care and Handling of Computer Magnetic Storage Media* (pp.
    37 - 52) regarding exposure to magnetic fields if a magnetic storage
    medium is used**

-   **Maintaining a second storage facility where \"back-up\" copies of
    all electronic patent and trademark case files are stored\
    **

## ENVIRONMENTAL CONTROL AND MONITORING PROGRAM

A controlled environment and monitoring program is an essential part of
protecting the readability of electronic patent and trademark case
files. Magnetic media are inherently unstable, so their longevity and
readability are at risk in a hostile storage environment where the
temperature and humidity are substantially elevated. Although, optical
media in general are somewhat more stable than magnetic media,
nonetheless they too are at risk when exposed to high relative
temperature and humidity. One of the primary reasons for this
vulnerability of magnetic and optical storage media is that the binder
that holds magnetic particles to a substrate (as in magnetic recording
fabrication) and optical media recording material to a substrate are
susceptible to \'binder hydrolysis\" when exposed to high relative
humidity.

*National Media Lab Research*. Research conducted by the National Media
Laboratory on predicted life expectancy of magnetic and optical storage
media confirms the negative impact of elevated temperatures in excess of
26 º C (74° F) and relative humidity of 70 percent. According to John
Van Bogart, the Principal Investigator for Media Stability Studies at
the National Media Laboratory who conducted these studies, 10 º C (50°
F) and 20 percent relative humidity provide the ideal storage
environment for electronic records to be retained for long periods of
time. Van Bogart acknowledges that this ideal storage environment may
not be feasible for many storage repositories, so he advises that 15 º C
(59±5° F) and 40% maximum relative humidity \" are safe practical
storage conditions." It must be underscored that these are stable levels
and any variation above the recommended temperatures and humidity ranges
is likely to significantly reduce media life expectancy.

*Cleanliness.* Another aspect of a program for the care and handling of
electronic patent and trademark case files in long-term storage involves
cleanliness. Airborne dust, food, and smoke particles deposited on the
surface of the storage media can cause a loss in the signal during
playback. Typically, these are temporary errors that can be corrected by
cleaning the surface of the storage media. The important point, however,
is to avoid temporary "read" problems or "data dropout" by using air
filters to remove dust particles and by prohibiting food, beverages, or
smoking in the storage facility. Another source of "data dropouts" is
any oil deposit from fingers, which attracts more dust, so lint-free
cotton gloves should be worn when it is necessary to touch the tape
surface.

*Periodic Inspection.* The last component of a controlled environment
and monitoring programs for electronic patent and trademark case files
is a periodic inspection of selected storage media to ensure that no
catastrophic loss has occurred or may be impending, by selecting a
statistical sample of media to be read. The number of items in the
sample depends upon the total number of storage media held in the
storage repository. 36 CFR 1234.30 (4) specifies the following
guidelines for selecting media to be included in the annual statistical
sample.

-   Select all storage media annually if they are fewer than fifty

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-   Select a 20% random sample of the storage media when the total
    number of storage media ranges between fifty and 1800

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-   Select a random sample of 384 storage media when the total number of
    storage media is 1801 or greater

> **[RECOMMENDATION]{.underline}:** **Ensure the continued readability
> of electronic patent and trademark case files by establishing a
> program that provides (1) a stable storage environment, and (2) good
> care and handling procedures. Such a program should include the
> following:**

-   **Maintaining a stable storage environment in which the temperature
    and relatively humidity (RH) are 15º C (59° F±5) and 40% (±5)**

-   **Installing a filter system to remove air dust particles and gas
    pollutants**

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-   **Prohibiting the consumption of food and beverages and smoking in
    the storage facility**

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-   **Implementing a program based upon 36 CFR 1234.309(g)(4) to read
    annually a statistical sample of the storage media to identify real
    or impending loss of information\
    **

[^1]: It should be noted that in the Federal Rules of Evidence the
    meaning of authenticity is functionally the same as the archival
    science definition of reliability and the meaning of reliability is
    functionally the same as the archival science definition of
    authenticity.

[^2]: The functions of the Commission on Preservation and Access have
    been incorporated into the Council on Library Resources (CLR).