*AI-generated translation, for reference only.

Recently, the Intellectual Property Court of the Supreme People's Court concluded an appeal in an administrative dispute over the invalidation of a design patent. The case involved legal issues such as the criteria, factors to be considered, and the burden of proof regarding whether information posted on WeChat Moments constitutes prior art or prior design.

This case concerns a design patent titled "Sofa (6832)" (hereinafter referred to as "the Patent"), with Luo [REDACTED] quan as the patent holder. Fu [REDACTED] ying Company filed a request for declaration of invalidity of the Patent, submitting as Evidence 1 a notarized certificate regarding the content of the WeChat Moments of "Jinan Zhu [REDACTED]," a WeChat friend of third-party Huang [REDACTED]. Fuying Company argued that this evidence demonstrated that the information displayed in "Jinan Zhu Mou's" WeChat Moments constituted prior art as of the filing date of the Patent.The China National Intellectual Property Administration issued an examination decision (hereinafter referred to as the "Contested Decision") regarding Fuying Company's aforementioned request for declaration of invalidity, holding that Evidence 1 was a notarized record of the content in the WeChat Moments of Huang's friend "Jinan Zhu," and that Huang and "Jinan Zhu" were already mutual friends prior to the notarization;Although the WeChat Moments information presented in Evidence 1 contained the text "factory's new model," there was no other promotional content regarding the product. Given that the visibility settings for WeChat Moments posts can be configured, Evidence 1 was insufficient to prove that the information in the relevant WeChat Moments post was known to the general public as of the date of its publication. Therefore, the information published in the WeChat Moments post did not constitute prior art for the patent in question, and the decision was made to uphold the validity of the patent.

After the petitioner for invalidation filed an administrative lawsuit, the court of first instance held that the patent holder, Luo Mouquan, neither asserted nor provided evidence to prove that Huang Mou, a WeChat friend of the WeChat user "Jinan Zhu Mou," had a duty of confidentiality regarding the content of "Jinan Zhu Mou's" WeChat Moments.and therefore, since the WeChat friend Huang could view the WeChat Moments post in question, the information was already in the publicly accessible state. Whether or not "Jinan Zhu" used the post for sales promotion purposes did not affect this finding. Evidence 1 constituted prior art for the patent in question; consequently, the court ruled to revoke the contested decision.After the case was appealed, the Supreme People's Court, based on supplementary findings regarding WeChat's functional settings and the mechanism for posting to Moments, issued a second-instance judgment: the first-instance judgment was revoked, and Fuying Company's claims were dismissed.

The Supreme People's Court held in the second-instance ruling that: In determining whether information posted on WeChat Moments constitutes prior art or prior design, one must comprehensively consider factors such as the mechanism for posting information on WeChat Moments, the specific circumstances of the poster, the specific content, method, and time of publication, and the primary purpose of the poster's WeChat Moments. The determination should be based on whether the information was actually accessible to the unspecified public prior to the patent application date, rather than merely relying on the possibility of access to conclude that it constitutes prior art or prior design.

Regarding whether the content of the WeChat Moments post in question was disclosed to the public: First, according to the notarization process described in Exhibit 1, Huang and "Jinan Zhu" were already WeChat friends prior to the notarization. Exhibit 1 does not prove that members of the general public could add "Jinan Zhu" as a WeChat friend directly without verification.Second, based on the posting mechanism of WeChat Moments, users can set the visibility scope when posting information. Evidence 1 does not prove that "Jinan Zhu"'s other WeChat friends or members of the general public who had not yet been added as friends by "Jinan Zhu" could view the content of the WeChat Moments post in question.Finally, apart from the sofa image accompanied by the caption "New Factory Model," the WeChat Moments post in question contained no promotional language, pricing information, or sales details. The comments section was also devoid of any such information. Furthermore, aside from the post in question, no other posts published by "Zhu from Jinan" in his WeChat Moments contained any obvious marketing content.In summary, Evidence 1 only proves that the content of the WeChat Moments in question by "Zhu from Jinan" was accessible to Huang; it is insufficient to prove that the content was in a state where the general public could obtain it at will. Furthermore, Evidence 1 is insufficient to prove that the WeChat Moments in question were primarily used for commercial purposes; therefore, it cannot be presumed that the content of the WeChat Moments in question was made public to the general public.

Regarding the burden of proof.Considering factors such as the nature of information posted on Moments, the parties' proximity to the evidence, and the difficulty of proving the case, where the petitioner for invalidation has failed to demonstrate that the information in the WeChat Moments was in a state accessible to the general public, nor proven that the WeChat Moments served primarily commercial purposes, the patent holder is generally not required to provide contrary evidence proving that the information was not disclosed or was disclosed only to specific individuals, unless the poster of the WeChat Moments is the patent holder or a person with a interest-based relationship in the patent holder.

In this case, Fuying Company asserted, based on Evidence 1, that the content of the WeChat Moments post in question constituted prior art for the patent in question. Consequently, Fuying Company should have proven that the content of the WeChat Moments post recorded in Evidence 1 was not accessible only to Huang, but was, from the date of publication, actually in a state where the public could obtain it if they so desired.Evidence 1 fails to demonstrate that members of the general public other than Huang Mou could access the content of the WeChat Moments post in question, nor does it prove that the post was primarily intended for commercial purposes. Furthermore, Fuying Company has not demonstrated that the poster of the WeChat Moments post, "Jinan Zhu Mou," has a relationship of interest with the patent holder, Luo Mouquan.Under these circumstances, the patent holder Luo Mouquan should not be required to prove that Huang Mou had a duty of confidentiality regarding the content of the WeChat Moments post in question, nor should he be required to prove that the content was not known to the public.

Based on the characteristics of WeChat's functions and the mechanism for posting to Moments, the second-instance judgment in this case established criteria and factors for determining whether information posted on WeChat Moments constitutes prior art or a prior design. This helps clarify the burden of proof between the petitioner for invalidation and the patent holder, and serves as a valuable reference for handling similar cases.