Discussion on WeChat Moments as an Existing Design Defense

In the current era where network technology is evolving rapidly and e-commerce is booming, the types of network evidence are becoming increasingly rich and diverse. As a new form of network evidence, the public content of WeChat Moments is often used as evidence for the defense of prior art or prior design. In design patent litigation cases, the alleged infringer often provides evidence that relevant information has been publicly disclosed in WeChat Moments before the filing date of the involved patent application, attempting to prove that the involved product is a prior design. However, there is a great deal of controversy regarding the publicity of WeChat Moments and its application in patent law. So far, neither the courts nor the National Intellectual Property Administration has formed a unified view. This article combines the previous judgments of the high-level courts across the country and the invalidation decision cases of the National Intellectual Property Administration to deeply explore the possibility of using the content of WeChat Moments as a defense of prior design.

Article 67 of the Patent Law stipulates that in a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design it implements belongs to the prior art or prior design, it does not constitute a patent infringement.

The Patent Examination Guidelines (2023) clearly state that the prior art or prior design should be the technical content that the public can obtain before the filing date, that is, it is in a state where the public can obtain it if they want to.

In practice, there are two opposing views on whether WeChat Moments constitutes publicity in the sense of patent law:

Positive View: Given the widespread popularity of WeChat, more and more people are using WeChat Moments as an important channel for product marketing. Objectively, the content of some WeChat Moments already has the function of marketing and has actually become an important platform for promoting products. By posting product information in Moments, the publisher intends to publicize and promote their products to the outside world. Therefore, the content of Moments should be regarded as a patentable publicity.

Negative View: The information published in Moments can be restricted in terms of the scope of publicity through permission settings, including settings such as visible to all friends, visible to some friends, or visible only to oneself. Users can also set the time range for friends to view Moments, such as the last three days, the last six months, or all, and can change these settings at any time. In addition, even if the content of Moments is visible to all friends, the visible range is limited to WeChat "friends", which does not conform to the state where it can be generally obtained by the public. The content of Moments should not be regarded as a patentable publicity.

Therefore, whether WeChat Moments constitutes a patentable publicity cannot be generalized and needs to be analyzed on a case-by-case basis. It can be clearly seen from the previous cases that the key to determining whether WeChat Moments constitutes a patentable publicity lies in whether the WeChat account involved in the case is used for promotion and publicity. When the courts and the National Intellectual Property Administration determine whether a WeChat account is used for promotion and publicity, they usually make a judgment by combining the identity nature of the WeChat user, the characteristics of Moments, the frequency of posting, and the content of the posts:

Case Number: (2018) Zhejiang Civil Final Appeal No. 552
Trial Court: Zhejiang High People's Court
The Moments evidence in this case involves two WeChat users. One of the WeChat nicknames is "Jin Jin Cast Aluminum Door Flower Luo Ling 182××××1998". The subject of this account is Luo XX, who is the younger sister of the appellant Luo Mou and an employee of Luo Mou's company. The personalized signature of her WeChat Moments is "Exquisite cast aluminum door flowers, pursuing artistic taste. Welcome to purchase, rush purchase hotline 182××××1998"; the other WeChat user is "Feiyu Company, Chen 139××××8756", who is a peer engaged in the production and operation of doors. Obviously, the purpose of these two WeChat users posting door flower pictures in Moments is to hope to promote their products through Moments, and it is clear that the relevant products are already on sale and the public can purchase and use them. Although there are situations such as "visible only to some friends" and "visible to everyone" in WeChat Moments, even if the Moments permission is set to be visible only to some friends, these friends do not have a confidentiality obligation for the content of this WeChat user's Moments. Instead, they can provide it to others for viewing, or download, forward, or use it for other public purposes. For the general public who has not yet become a friend of a specific WeChat user, there is a possibility of adding them as a friend and thus learning the content of their Moments. It can be seen that the content posted in Moments has the possibility of being known by an unspecified public. Therefore, the content of Moments constitutes a patentable publicity.

Case Number: (2021) Guangdong Civil Final Appeal No. 85
Trial Court: Guangdong High People's Court
The WeChat nickname of the WeChat user involved in the case is "Chaoban - Guo Xiaofang 138××××6885". The cover of the Moments album shows the logo with the words "Chaoban Chinese-style Woodworking". And the cover introduction is the advertising slogan "For Chinese-style lamps, choose Zhongshi Lighting first! 138××××6885"; from May 13, 2018, to May 31, 2018, the user posted several physical pictures of the patented products involved in the case and promotional posters in Moments, and the captions of the pictures are "Chaoban Woodworking & Lihe Hi-buy Festival, come and make an appointment, big prizes are waiting for you", "The Zhongshi Lighting & Lihe Hi-buy Festival on June 12 is approaching. The members of Chaoban are preparing nervously and orderly. We look forward to your arrival!" etc. Whether it is the WeChat nickname involved in the case or the content of Moments is full of the meaning of promotion and publicity. Although WeChat Moments has a verification procedure, whether the information posted in Moments is in a state where the public can obtain it if they want to should be comprehensively judged from aspects such as the identity nature of the WeChat user, the main purpose of the WeChat account, and the content of the posted Moments to determine whether it constitutes publicity in the sense of patent law. The evidence in this case has formed a complete chain of evidence, highly probably proving that the WeChat account involved in the case is mainly used for commercial operation and promotional promotion. The intention of the product pictures posted by the WeChat account involved in the case from May 13, 2018, to May 31, 2018, is to publicly sell and promote, which constitutes publicity in the sense of patent law.

Case Number: (2019) Guangdong Civil Final Appeal No. 260
Trial Court: Guangdong High People's Court
The WeChat nickname involved in the case is "Bao Juan (Meiruimei Lampshade) YX Lighting Accessories", with a contact number marked below. The Moments involved in the case are the nine-square grid product information posted by Sun XX, the operator of YX Lighting Store, on April 10, 2017. In addition to displaying a variety of lighting products including the allegedly infringing product in this case, the middle picture of the nine-square grid is the business card of YX Lighting Store. In addition, this Moments also shows various lighting products several times. Judging from common sense, the pictures posted by YX Lighting Store in Moments are to let more people know about its products, and thus achieve the purpose of promoting and selling. Obviously, it will not prohibit others from viewing the content of this Moments. Although the number of WeChat "friends" is limited to a certain extent, each "friend" does not have a confidentiality obligation and may spread and share the relevant information within a larger range, so as to achieve the publicity of the posted content to an unspecified public. The content of Moments constitutes a patentable publicity.

Case Number: (2020) Guangdong Civil Final Appeal No. 842
Trial Court: Guangdong High People's Court
The nickname of the WeChat user involved in the case is "Lang'ao LED Lighting - Gao 138××××XXXX"; the WeChat avatar is a picture of a lighting product with the words "Powerful Merchant" marked on it; the cover of the WeChat Moments album shows the logo with the words "Langzhilv" and the words "Zhongshan Lang'ao Lighting Factory"; from May 15, 2017, to November 7, 2018, the content of the Moments posted by this user is related to the procurement, sales, and exhibition related situations of products; the caption of the picture posted in Moments on June 24, 2017, is "Solar multi-functional integrated with remote control, 10W, 98 yuan. If you need it, please contact me". The existing evidence has formed a complete chain of evidence, highly probably proving that the WeChat account involved in the case is basically used for commercial operation and promotional promotion. Although Chen X Sheng argued that the WeChat user involved in the case set a limit on the visible days of Moments, the content of Moments within the visible range is still related to product sales, team development, exhibition work, etc., and the cover picture of the Moments album is still a lighting product picture, and the nickname and personalized signature of the WeChat account have not changed. Therefore, the Moments of the WeChat account involved in the case should be determined to be used for commercial operation and promotional promotion. The physical product picture posted in Moments on June 24, 2017, is intended to publicly sell and promote, which constitutes publicity in the sense of patent law.

Decision Number: No. 563521
Issuing Authority: National Intellectual Property Administration
The WeChat account involved in the case is "rx5591", the WeChat name is "Aaron. Guangdong X Jun - Finishing Intelligent Equipment", and the WeChat personalized signature is "Research, development, and manufacturing of finishing intelligent equipment for interior and exterior walls, roofs, floors, furniture, etc.". The existing evidence shows that it has been regularly promoting, publicizing, and selling finishing products, etc. in Moments at least since 2017, and the text content and pictures shown in Moments also have the purpose of publicity. Combining the above information, the purpose of this WeChat user posting this Moments is to publicize and promote relevant products, and it is highly probable that the Moments has been in a non-private state since the date of posting. In the absence of contrary evidence, the content of Moments has been in a state where the public can obtain it if they want to since the date of posting, which belongs to publicity in the sense of patent law.

Case Number: (2019) Guangdong Civil Final Appeal No. 3188
Trial Court: Guangdong High People's Court
The WeChat account involved in the case is a personal account, and the WeChat nickname is "AAA777 Meiyu Bubble Toys". The content of the Moments posted on August 22, 2017, includes "The new decompression basketball is beautifully launched", but there are no "likes" or "comments" under this post. The court believes that the openness of a personal account in terms of the way of adding accounts, the upper limit of the number of people, and the access method is not as high as that of an official account, and the public state of the relevant content can be limited by setting access permissions. Therefore, the Moments of the WeChat account involved in the case does not constitute a patentable publicity. Although AXD Company argued that this WeChat account can be added by anyone, the verification process can only illustrate the state of this WeChat account at the time of verification, and it is difficult to prove the state as early as 2017, let alone prove the state for other friends other than Yu X Peng at that time. Moreover, the result of the on-site verification by AXD Company during the court investigation stage is that the Moments of this WeChat account is not open to all friends. Combined with the situation that there are no "likes" or "comments" in the Moments involved in the case, the existing evidence cannot prove that the pictures in this Moments are in a state where the public can easily obtain them if they want to, and it cannot be proved that the pictures have been publicly disclosed before the filing date of the involved patent, so it does not constitute a prior design.

Case Number: (2020) Chongqing Civil Final Appeal No. 1059
Trial Court: Chongqing High People's Court
The identity and occupation of the WeChat user with the WeChat name "Yiye Xiaomoumou" involved in the case are unknown. This user posted a total of 8 Moments from April 13, 2018, to April 30, 2018, and the frequency of posting Moments is not high. Only two of them are related to product sales, and the rest are private life photos or sentiment sharing content. The Moments information related to products also does not have detailed product introductions, sales contact information, or other specific text content. The number of likes and comments on the Moments showing the packaging bag picture on April 19, 2018, is zero, and the attention is extremely low. Considering the above situation comprehensively, the intention of the WeChat user with the WeChat name "Yiye Xiaomoumou" to use Moments exclusively for product sales promotion is not strong. Moreover, Zhejiang TX Company failed to prove that when this WeChat user posted the above pictures in Moments, he accepted the friend requests from anyone, did not prevent any contact from viewing Moments, and had set it to allow strangers to view Moments. Therefore, the existing evidence is not sufficient to prove that the packaging bag picture information was in a state where the public could obtain it if they wanted to when it was posted in Moments, and the content of Moments does not constitute publicity in the sense of patent law.

Decision Number: No. 39305
Issuing Authority: National Intellectual Property Administration
The WeChat user involved in the case posted a total of 6 pieces of information from December 05, 2015, to December 19, 2015, and most of the content is to record the bits and pieces of life. For example, the post on December 19 is "The wallet doesn't grow, but the weight soars", and the post on December 12 is "I drank this pot alone tonight... Maca". Regarding the content of the Moments posted on December 09 mentioned by the invalidation requester, although there is a chair in the picture, the caption is "In the blink of an eye, more than half of December has passed... Another year...". Even for the chair picture posted on December 07, 2015, which is used for comparison with the involved patent, the caption is "While running and complaining about being tired, we have to keep running on the other side. They are coming out one after another... The new product. Welcome to order". Overall, the Moments of the WeChat account involved in the case is not a platform for marketing, but more a relatively private space for recording the bits and pieces of life, sharing one's work, life, and mood. Posting new product information in Moments is aimed at making more friends aware of it, rather than being known by the public in the sense of patent law, and it does not belong to publicity in the sense of patent law.

Decision Number: No. 45927
Issuing Authority: National Intellectual Property Administration
The WeChat account involved in the case posted a total of 8 Moments from January 21, 2016, to January 25, 2016. Only two of them involve product pictures. One is the post on January 23, 2016, with the text "Direct sales of sports kettles by the manufacturer. Buy now, while stocks last. Large quantity, favorable price", and the other only shows its title as "Dear new and old customers, during the Spring Festival, Datong Plastic Products Factory will be on holiday from January 26 to February 15 and will resume on February 16...", and the rest are private life photos or sentiment sharing content, including the weather, the condition of relatives, etc. The two dynamics in Moments recording the product pictures do not have complete product name models, sales contact information, or other specific text introductions. In addition, the four Moments posted by the WeChat account involved in the case on March 29, 2020, and "yesterday" also do not involve any product sales content. Combining the Moments information shown by the involved account, it is obvious that it does not have the purpose of promoting and publicizing products. In the absence