In today’s era of highly developed social media, WeChat Moments has become a crucial window for enterprises and individuals to showcase their products. However, can a single product photo posted in Moments be directly used as “prior design” in a patent invalidation declaration?

In Case No. (2023) SPC Zhi Xing Zhong 1229¹, the Supreme People’s Court (SPC) established clear adjudication rules: WeChat Moments does not inherently belong to the public domain under patent law. The determination of its public nature requires a comprehensive assessment of the platform’s mechanisms, commercial attributes, and the allocation of the burden of proof.

The case involved a “sofa” design patent with an application date of July 18, 2019. The invalidation petitioner, a Huizhou-based furniture manufacturer, alleged that a third party, “Zhu from Jinan” had posted a sofa photo on WeChat Moments on July 10, 2019 (eight days prior to the patent application date) with the caption “New Factory Model,” arguing that this design constituted a prior design and requesting the invalidation of the patent in question.

During the invalidation examination, the China National Intellectual Property Administration (CNIPA) determined that WeChat Moments is a private social platform directed at specific friends, and the content in question did not constitute public disclosure under patent law, thus maintaining the patent’s validity. Dissatisfied, the petitioner filed an administrative lawsuit.

The court of first instance (Beijing Intellectual Property Court) held that WeChat friends were not bound by confidentiality obligations regarding the content, meaning the information was already in a state of “being known to the public upon desire.” Consequently, it revoked CNIPA’s decision. Dissatisfied with the first-instance judgment, CNIPA appealed to the SPC.

The core dispute in this case was whether the WeChat Moments content constituted a prior design. This can be broken down into three key questions:

1. Does the publishing mechanism of WeChat Moments meet the patent law requirement of being “known to the public”? Can content in a private social setting naturally constitute a prior design?
2. When claiming that Moments content constitutes a prior design, how is the burden of proof allocated between the invalidation petitioner and the patentee?
3. Can the commercial purpose of public promotion be presumed based solely on the account’s nickname or a single piece of product content?

In the second instance, the SPC explicitly stated that a prior design must be one that was actually in a state of being accessible to the indefinite public before the application date, rather than merely having the possibility of being accessed. The SPC denied the public nature of the Moments post in question from three aspects:

1. Platform Mechanism: Default visibility to friends does not equal public disclosure. WeChat Moments are visible only to friends by default, and publishers can independently set various visibility restrictions. The evidence in this case only proved that specific individuals who were mutual friends could see the content; it could not prove that the indefinite public could view the content without verification, nor could it prove that the content was visible to all friends.
2. Content Attributes: A single “New Factory Model” caption is insufficient to establish commercial use. The post only had the caption “New Factory Model” without commercial promotion information such as prices or purchasing channels, and other posts on the account showed no obvious marketing attributes. Relying solely on the commercial-sounding nickname at the time of notarization was insufficient to conclude that the Moments account was primarily used for commercial purposes, and thus, public disclosure could not be presumed.
3. Evidentiary Validity: Notarized status cannot be retroactively applied to the situation on the application date. WeChat nicknames and Moments cover photos can be modified at any time; the status at the time of notarization cannot be retroactively applied to the actual situation on the patent application date.

Regarding the allocation of the burden of proof, the SPC corrected the reasoning of the first-instance court, affirming a clear rule that strictly adhering to the principle of “whoever asserts must prove”:

• Initial Burden on the Petitioner: The party claiming that WeChat Moments constitutes a prior design must provide evidence proving that the information was actually in a state of being accessible to the indefinite public.
• Conditions for Shifting the Burden: Only when the petitioner proves that the Moments account is primarily used for commercial purposes can its public nature be preliminarily presumed, shifting the burden of rebuttal to the patentee.
• No Obligation for the Patentee to Self-Prove: If the publisher has no vested interest with the patentee and the petitioner has not fulfilled the initial burden of proof, the patentee should not be required to provide evidence proving that the information was not disclosed or that the audience was bound by confidentiality obligations.

Ultimately, the SPC’s second-instance judgment revoked the first-instance judgment, dismissed the petitioner’s litigation request, and upheld CNIPA’s invalidation declaration.

Practical Implications

As a typical precedent for recognizing prior designs in WeChat Moments, this case provides clear rule guidance for patent invalidation practice:

• Moments Are Not Inherently Public: The public nature of social media must be comprehensively judged in combination with platform mechanisms, permission settings, and audience scope. Moments with private social attributes cannot, in principle, be directly equated with public publications or public sales scenarios.
• Strict Adherence to “Whoever Asserts Must Prove”: The invalidation petitioner bears the initial burden of proving the public nature of the prior design. Courts should not directly infer public disclosure based on “the audience having no confidentiality obligation,” as this would inappropriately increase the patentee’s burden of proof. The burden of proof only shifts when the account has continuous and open commercial promotion attributes.
• Holistic Standard for Commercial Attributes: A single product photo is insufficient to prove the purpose of commercial promotion. It is necessary to comprehensively judge whether the account’s core purpose is business promotion by combining the overall published content, operational model, and interaction data.
• Practical Recommendations: In patent invalidation proceedings, if one intends to use WeChat Moments as evidence of a prior design, it is recommended to collect as much information as possible regarding the account’s overall operation, commercial promotion records, and interaction data to form a complete chain of evidence, rather than relying solely on a single post or the account’s nickname at the time of notarization. Additionally, attention should be paid to preserving the account’s status on the application date to avoid compromised evidentiary validity due to subsequent modifications.

By Kaiyuan Song

1. https://ipc.court.gov.cn/zh-cn/news/view-4931.html ↩︎