In an administrative appeal, the Supreme People’s Court clarified that determining whether content posted in a WeChat Moment (a semi-private social feed within the app where users share updates only with approved contacts) constitutes prior art or a prior design requires a comprehensive assessment of several factors. These include the platform’s posting mechanisms, the poster’s circumstances, the content and timing of the post, and the primary use of the poster’s account. The key criterion is whether the information was genuinely accessible to the general public before the patent application date, not merely being potentially accessible.
This article concerns a review decision on an invalidation request, summarized as follows:
Natural person L is the patentee of the design patent in question (hereinafter referred to as "the patent"). Company A filed an invalidation request against the patent, submitting as Evidence 1 a notarized document capturing the WeChat Moment content of natural person Z, a WeChat contact of a third party, natural person H. Company A argued that the information displayed in Z’s WeChat Moment constituted a prior design before the patent application date.
The China National Intellectual Property Administration (CNIPA) issued a review decision (hereinafter referred to as "the challenged decision") in response to Company A’s invalidation request. It held that Evidence 1 was insufficient to prove that the WeChat Moment information had been accessible to the general public from the time of its posting. Therefore, the information posted in the WeChat Moment did not constitute a prior design for the patent, and the patent was upheld as valid.
Company A subsequently filed an administrative lawsuit with the first-instance court, which revoked the challenged decision. The court held that, regarding the burden of proof, the invalidation requester need only show that the design was in a condition where the public could have accessed it if they wanted to do so. Whether anyone actually did so was generally presumed without requiring additional proof. However, if evidence indicated that no one had accessed the design, it would likewise not constitute a prior design. In this case, the burden will then shift to the patentee to prove otherwise. In the present case, since patentee L neither asserted nor demonstrated that H, as a WeChat contact of Z, owed a duty of confidentiality regarding the content of Z’s Moment, the information was considered publicly accessible once H could view it, regardless of whether the post served promotional purposes. Therefore, the court found that Evidence 1 constituted a prior design to the patent.
CNIPA appealed the first-instance judgment.
The Supreme People’s Court overturned the first-instance judgment in the second-instance ruling and dismissed Company A’s claims.
In its final judgment, the Supreme People’s Court held that the issue in dispute during the second instance was whether the content of the WeChat Moment in question constituted a prior design. The determination requires a comprehensive assessment of various factors, including the posting mechanism of WeChat Moments, the specifics of the poster, the content, method, and timing of the post, as well as the primary purpose of the poster’s WeChat Moments. The key criterion is whether the information was actually accessible to the general public before the patent application date, rather than merely being potentially accessible.
Regarding whether the WeChat Moment content was publicly accessible, the following points were considered: First, Evidence 1 revealed that H and Z were already mutual WeChat contacts prior to notarization. The evidence did not establish that members of the general public could add Z as a contact without verification. Second, under WeChat’s posting mechanism, users may restrict the visibility of their posts to selected audiences. Evidence 1 did not demonstrate that Z’s other contacts - much less unconnected members of the public - could view the content at issue. Third, aside from a sofa image captioned “Factory New Release,” the post contained no promotional language, pricing, sales information, or interactive comments. Nor did Z’s other posts in Evidence 1 indicate a primarily commercial use of the account.
In sum, Evidence 1 only confirmed that the content was accessible to H, not that it was available to the general public upon their initiative. Moreover, the evidence was insufficient to prove that Z’s WeChat Moments served a commercial purpose, and therefore it could not be presumed that the content was publicly accessible.
Regarding the burden of proof: given the private nature of WeChat Moments, the varying accessibility of evidence, and the practical challenges of proof, if the invalidation requester cannot establish that the posted content was accessible to the general public or that the account was primarily used for commercial purposes, the patentee generally bears no obligation to prove the contrary, unless the poster is the patentee or an interested party.
In this case, Company A relied on Evidence 1 to claim that the WeChat Moment content constituted prior design. Accordingly, Company A bore the burden to prove not only that the content was accessible to H, but also was genuinely accessible to the general public from the time of posting. Evidence 1, however, failed to establish that the content could be accessed by anyone beyond H, nor did it show that the WeChat Moment account was primarily used for commercial purposes. Furthermore, Company A presented no evidence linking the poster Z to patentee L. Given these shortcomings, it was unreasonable to place the burden on patentee L to prove either that H owed a duty of confidentiality or that the content remained non‑public.
Through this ruling, the Supreme People’s Court established clear criteria for determining whether WeChat Moment content may qualify as prior art or a prior design. The decision establishes the burden of proof in invalidation proceedings involving social media evidence, preventing "pseudo-public" information from easily invalidating patents.. By doing so, the Court balances the protection of genuine innovation with fairness in evidentiary requirements, offering meaningful guidance for similar cases in the future.
(2023) Zui Gao Fa Zhi Xing Zhong No. 1229
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