A preliminary study on whether the content of WeChat circle of friends constitutes the judgment standard of disclosure in the sense of patent law.

Abstract

WeChat Moments has been in the public eye for nearly 10 years and has more than 1.2 billion users. However, the current laws and regulations do not clearly stipulate whether the content of WeChat Moments can constitute disclosure in the sense of patent law, and this issue has been controversial in practice. Quite a lot. Although in the past year, the patent administration and the judiciary have tended to agree on this issue in specific cases, they have not given clear criteria for judgment, and the factors considered in each case are different, and the allocation of the specific burden of proof is also different, which is not conducive to settling disputes. By combing the views of patent administration and judicial practice as well as academic circles, and combining with the thinking of relevant laws and regulations, this paper proposes to use the combination of "subjective use", "free circulation" and "objective knowledge" and the "four-step method" to judge whether the content published in WeChat circle of friends or similar ways constitutes disclosure in the sense of patent law, hoping to provide useful reference for the clarification of relevant judgment standards.

Keywords: WeChat circle of friends; patent law; disclosure; judgment standard

Introduction

Since Tencent launched WeChat software in 2011, the circle of friends, one of the earliest functions of WeChat, has been widely used by users to share information and promote products and services. This has also led to a series of legal issues, including: is the content or information in the WeChat circle of friends (mainly pictures and text information, excluding web links) public in the sense of patent law? In practice, patent administrations and courts at all levels have different views on this issue, and there is no uniform standard, which has caused great trouble in resolving related patent disputes.

With the rapid development of the mobile Internet, there have been a variety of social software similar to WeChat and the number of explosive growth. As far as WeChat is concerned, as of March 2020, the number of combined monthly live accounts of WeChat and WeChat has exceeded 1.2 billion, and more than 0.12 billion users will publish content in the circle of friends every day in 2020 [1]. It can be expected that legal issues arising from the release of content based on WeChat Moments and similar software will also become more frequent. The determination of "whether the content or information of WeChat circle of friends belongs to the disclosure in the sense of patent law" has an important impact on the confirmation and protection of patent rights, and sometimes even plays a decisive role. Under the environment of improving patent quality and strict intellectual property protection in China, it is necessary to establish a unified judgment standard for this problem, so as to give clear guidance to the patentee and the public, so as to help reduce and resolve such disputes.

Patent judicial and administrative practice and academic perspectives

(I) judicial practice viewpoint

In judicial practice, there are currently three views on whether the content published by WeChat Moments is public in the sense of patent law:

The first view denies the openness of WeChat circle of friends and holds that WeChat circle of friends has the private attribute of being open to specific users. Under normal circumstances, the information disclosed by WeChat circle of friends does not constitute the existing technology unless the party claiming to constitute the existing technology can prove that the information was already known to the unspecified public when the circle of friends was released. However, it is basically impossible to objectively prove the situation that the unspecified public knows the public information when the circle of friends is released. Therefore, according to this view, the information disclosed by WeChat circle of friends does not constitute the existing technology. Guangzhou Intellectual Property Court and Guangdong Higher People's Court both hold this view in many cases [see (2015) Yue Zhi Fa Zhan Min Chu Zi No. 2321 Civil Judgment, (2016) Yue Min Zhong Zi No. 801 Civil Judgment, (2017) Yue 73 Min Chu 3525 Civil Judgment, (2017) Yue Min Zhong Zi No. 909 Civil Judgment, (2018) Yue Min Zhong Zi No. 1182 Civil Judgment].

For example, in the case of Li Shengpei v. Foshan Mingao Home Furniture Co., Ltd. over the dispute over the patent right of design [see (2015) Yue Zhi Fa Zhuan Min Chu Zi No. 2321 Civil Judgment], Guangzhou Intellectual Property Court held that micro-signals belong to personal privacy like QQ number, and it is generally difficult for the public to obtain them without consent. Even if they obtain further permission, they need to view photos of friends. The degree of friends is different permission, it is difficult to meet the "public" requirement of the existing design. In addition, although private micro-signals can be set to allow strangers to view 10 photos, the defendant has not proved that the photos released by the micro-signals involved in the case belong to one of the 10 photos allowed to be viewed by strangers, and it is even more difficult to explain that the photos belong to the recently released photos allowed to be viewed by strangers in the circle of friends. Therefore, it is impossible to confirm that the photos involved in the micro-signal are in a state that can be obtained by the public before the patent application date in this case.

In addition, the Beijing Intellectual Property Court held in the invalid administrative dispute case related to the "Menhua Case" of Luo Kui and Yongkang Xingyu Hardware Factory [see (2018) Administrative Judgment No. 8042 at the beginning of Beijing 73] that the information released by WeChat circle of friends does not constitute disclosure in the sense of patent law. The reason is that the state in which the content of the existing design can be obtained by the public must be an actual state, not just a possible state. The evidence involved does not prove that the publisher of WeChat circle of friends did not set up friend verification, thus allowing anyone to add their friends and view their circle of friends.

The second view is also the current mainstream view that the openness of the content of WeChat Moments cannot be denied in a generalized manner, but a case analysis should be considered in light of the specific situation. The specific situation mainly includes whether the publisher of the circle of friends has the intention of spreading the information of his circle of friends, such as marketing, and whether the publisher of the circle of friends has restricted one or both of the time and scope of WeChat friends. Some courts in Shaanxi, Zhejiang and Jiangsu hold this view [see (2020) civil judgment No. 3 of Shaanxi minzong, (2019) civil judgment No. 1380 of Shaanxi 01 minchu, (2018) civil judgment No. 552 of Zhejiang minzong, (2017) civil judgment No. 1796 of Zhejiang 01 minchu, (2020) civil judgment No. 799 of Zhejiang minzong, (2020) civil judgment No. 2307 of Guangdong minzong, (2020) su Zhizong No. 67 Civil Judgment].

When judging whether the publisher of the circle of friends restricts the access time and scope of WeChat friends, the Zhejiang Provincial Higher People's Court refers to the results of the trial or the release of the circle of friends shown in the notarial certificate provided by the proving party as the basis, and allocates the burden of proof for the modification of WeChat information to the plaintiff.

The Jiangsu Higher People's Court can view the content of the circle of friends within a long time span through the evidence of the pictures published by the WeChat circle of friends provided by the defendant to presume that the publisher of the WeChat circle of friends has not restricted the time and scope of access, and has allocated the burden of proof of "restricting the time and scope of access" to the plaintiff. In addition, in the public time determination, the aforementioned courts all took the release date of the circle of friends as the public date.

It is worth noting that in a recent case [see (2020) civil judgment No. 2307 of Guangdong provincial higher people's court], it changed its previous view that "the circle of friends does not constitute publicity" and turned to think that if it can be clearly seen that the release of information has marketing purposes, it has the willingness to forward it to friends in the circle, and it has the possibility of wider dissemination, it can be determined that the product is in a non-private state from the date of release and is in a state accessible to the public with a high degree of cover, and can be determined to constitute public, otherwise, it does not constitute public.

The third view is that promoting and selling products through WeChat circle of friends is a relatively common marketing mode in recent years. Products released in WeChat circle of friends should be regarded as having been made public to the public and can be compared as existing designs [see (2020) Lu Min Zhong No. 2335 civil judgment].

(II) State Intellectual Property Office Practice

Using "WeChat" and "circle of friends" as keywords to search for invalid decisions made by the State Intellectual Property Office and the Patent Reexamination Board of the State Intellectual Property Office (hereinafter collectively referred to as "State Intellectual Property Office") (search date September 3, 2021) A total of 56 articles, 52 of which involved the determination of the openness of WeChat circle of friends. A review of the contents of the relevant invalidation decisions shows that the views of the 52 invalidation decisions can be divided into two main categories:

The first view is that the WeChat circle of friends is private and the permissions can be set at will, and the content does not constitute disclosure in the sense of patent law. Representative cases such as "octagonal tea table (MD03)" design patent invalidation case [see invalidation request review decision (no 35400)].

The second point of view is that it cannot be generalized, but should be comprehensively judged in combination with the situation of WeChat users' circle of friends. If it has obvious marketing purpose, it can be presumed that it is in a non-private state from the date of release of the circle of friends, which is highly covered by the public. However, if there is no marketing and other promotion purpose and willingness, it is considered that it is not sufficient to constitute publicity.

In terms of quantity and proportion, there were 39 invalid decisions holding the second view, accounting for 75%, and 13 invalid decisions holding the first view, accounting for 25%. In terms of the date of the invalidation decision, all of the invalidation decisions that held the first view were made before November 2020, and all of the 11 decisions made after that date, without exception, held the second view.

It can be seen that the State Intellectual Property Office has gradually unified its understanding of the openness of WeChat circle of friends in the trial of invalid cases, that is, the rule of high probability of civil evidence is applied. If the specific situation of WeChat circle of friends publishers can be comprehensively considered to judge that they have obvious marketing and promotion purposes, it can be presumed that the circle of friends has been in an open state since the date of publication and has high probability of coverage, it is recognized that it can constitute disclosure in the sense of patent law; On the contrary, if the specific circumstances of the WeChat circle of friends publishers cannot be considered to have marketing, promotion and diffusion purposes, it is not sufficient to presume to constitute disclosure. This view of the State intellectual property Office has something in common with the mainstream view of judicial practice, and they all think that it cannot be generalized, but needs to be identified in a comprehensive manner.

(III)technical point of view

Regarding whether the information of WeChat circle of friends can constitute the existing technology (design), Chen Yu [2] of the Law School of China University of Political Science and Law discusses four aspects: the determination of the public scope, the accessibility of relevant information, the adequacy of the public content and the determination of the public time. It believes that regarding the scope of the public, it cannot be mechanically and unilaterally believed that relevant information must be aimed at all the public. Generally speaking, researchers in the same or similar research fields, corporate customers, suppliers, distributors, and industry standard-setting agencies, etc. All can become public objects, and a specific user group in a certain field should belong to the public in the sense of patent law; about the accessibility of relevant information, it is not required that the public can obtain relevant information, as long as it has the possibility of obtaining it and does not have the obligation of confidentiality; the determination of the time of disclosure should be based on the time when the first person who does not have the obligation of confidentiality obtains the content as the time of disclosure.

Zeng Yue [3], School of Economics and Management, Chongqing Jiaotong University, believes that technical information released by the circle of friends should be recognized as an existing technology in the sense of patent law. It believes that friends in WeChat circle of friends should be set as free persons without any obligation of confidentiality and have public status. If it is determined that the disclosure of WeChat circle of friends does not constitute disclosure in the sense of patent law, it will result in the wrong direction of the law allowing the public to recklessly use WeChat circle of friends as a refuge for existing technology defense, and the patent protection period will be extended, thus enlarging the rights limit indefinitely.

Ding Xiaoting and others from the Beijing Center for Patent Examination Collaboration of the Patent Office of the State Intellectual Property Office [4] believe that whether the content of WeChat's circle of friends constitutes disclosure in the sense of patent law cannot be generalized, but depends on the way the authority of WeChat and its circle of friends is set. If WeChat users limit the scope of information disclosure through permission setting, the result of disclosure to the unspecified public has not been achieved, and there is no possibility of being known to the unspecified public. If WeChat users accept anyone's application to add friends for promotion purposes and do not prevent any contact from viewing the circle of friends, it can be considered as constituting disclosure in the sense of patent law.

In addition, lawyers Yu Long and Liu Jiafeng [5] summarize their views on the considerations of openness in the WeChat circle of friends. It believes that the considerations for the openness of WeChat circle of friends mainly include the main body of the publisher, the subjective intention of the publisher, the content of the publication and the feedback of the audience. The main body of the publisher includes whether the nature of the account is a job or an individual, whether the litigation status is a party to the case or an outsider, and whether the business role is a consumer, seller, producer or an unidentified subject. Subjective intent includes authority setting and promotion intent; audience feedback includes audience identity, likes and comments. It believes that in addition to the comprehensive judgment of the above four aspects, it should also take into account the identity of the viewer at the time of evidence collection as an important supplement. However, it does not give suggestions on how to use the above-mentioned multiple elements to make specific determinations.

 

Discussion on existing views

Judging from recent cases, the public view that the content published by WeChat circle of friends is not considered to constitute the meaning of patent law has been gradually eliminated, and this article will no longer discuss it. The following is a discussion of the main points of view that currently support the openness of WeChat's circle of friends.

See the table below. Most of the current views that support the openness of WeChat Moments believe that they cannot be generalized, but the factors and logic considered in specific judgments are different. For example, the mainstream view of justice mainly confirms whether the WeChat publisher has the intention to promote and one or two aspects of the permission setting to confirm whether it constitutes public. The logic is primarily that the content of the circle of friends can be considered to constitute disclosure in the sense of patent law if there is a clear marketing intention and/or no restriction on authority, I .e., there is a high probability that it will be known to the unspecified public, and vice versa. The State Intellectual Property Office's point of view is mainly from whether the WeChat publisher has the intention to promote the information at the time of publication in a non-private state of high cover, the presumption constitutes public.

On the Determination of Openness of WeChat Friends Circle

The basic basis of the judicial mainstream view and the view of the State Intellectual Property Office is mainly based on the subjective intention of the WeChat circle of friends when publishing information. In this regard, the author can not agree. On the one hand, the state of "known to the public" should be an objective state, and should not be affected by the subjective intention held by the information publisher when publishing information. In fact, it is not the subjective will of the information publisher. Strong, the greater the possibility of information diffusion. A typical situation is that more and more people will block the information published by WeChat merchants in WeChat friends, let alone actively spread. On the other hand, whether it is "known to the public" should not depend on the level of "the possibility of being known to an unspecific person", but only related to "whether there is the possibility of being known to an unspecific person. For example, according to the relevant provisions on publication disclosure in the guidelines for patent examination (2010 edition), publication disclosure is not restricted by geographical location, language or access method, nor is it limited by age. It doesn't matter how much publication circulation, whether anyone has read it or whether others know it. Once a publication is issued, it means that it is "known to the public". It can be seen that when determining the openness of publications, there is no additional condition of "high possibility of being known by an unknown person", but only "possibility of being known by an unknown person. Moreover, with the change of marketing strategy, more and more people will not be particularly obvious and straightforward when using WeChat circle of friends for marketing, and the permission setting can be changed at any time. If the subjective intention or permission setting of WeChat circle of friends is taken as the decisive basis, the legal facts may seriously deviate from the objective facts.

In view of the openness of the content of WeChat circle of friends, other viewpoints one also think that it cannot be generalized. Combined with the relevant provisions of the US Patent Examination Guidelines and the European Patent Examination Guidelines, it is proposed that the public in the sense of patent law does not refer to all people in general, but to people who may exchange and share technical information with others, including researchers in the same or similar research fields, corporate customers, suppliers, distributors, and industry standard-setting organizations can all become public objects. Therefore, for the content disclosed by WeChat circle of friends, when determining whether it can be disclosed as the meaning of patent law, it is necessary to determine whether its friends meet the above definition of public. As long as the friends contain such public objects, it constitutes disclosure in the meaning of patent law. At the same time, it also believes that the time of disclosure should be judged by the time when the first person who does not have the obligation of confidentiality obtains the content as the time of disclosure.

For this view, the author does not agree. On the one hand, from the perspective of technological innovation, interdisciplinary and interdisciplinary innovation is an important and common way of innovation. Therefore, researchers in the same or similar fields cannot be considered to belong to the public, while people in different technical fields do not belong to the public. On the other hand, according to life experience, most people who use WeChat usually include at least colleagues, former colleagues, teachers or classmates in their WeChat friends, these people are likely to belong to the same or similar field as their friends. If they think that as long as such public objects are included in their friends, they constitute disclosure in the sense of patent law, then in essence, they undoubtedly believe that the information of WeChat circle of friends will usually constitute disclosure in the sense of patent law. But in fact, the disclosure of a lot of information in the circle of friends has not formed the free flow of information valuable for scientific and technological innovation, and does not meet the inherent requirements of the existing technology in the patent law. In addition, regarding the disclosure time, the first person who does not have the obligation of confidentiality cannot actually know and prove it at all, and thus, it is difficult to determine the disclosure time, and thus the operability is poor.

The other point of view is that the determination of whether the WeChat circle of friends is open depends on the way the micro signal and its circle of friends are set up. For this point of view, the author can not agree. From an objective point of view, after the establishment of a micro-signal, its nature and purpose may be constantly changing. The setting of the circle of friends can be adjusted dynamically, repeatedly and from person to person. If the identification basis of WeChat circle of friends is based on uncertain micro-signals and permission settings, it is obviously not conducive to drawing objective conclusions. Moreover, it is objectively impossible to prove the setting status of WeChat circle of friends when it was released. From the existing judicial practice cases, it can be seen that whoever bears the burden of proof is basically faced with losing the lawsuit.

In response to the public problem of WeChat circle of friends, other viewpoints 3 set WeChat circle of friends as having public status regardless of circumstances, which is also inconsistent with objective reality. It must be recognized that if all WeChat friends have no motivation to use the information published in WeChat's circle of friends, or objectively it has not spread to areas outside the circle of friends, then the information will always be limited to the limited range of the publisher's circle of friends and cannot be used, then the information does not have a state that can be known without specific public knowledge, and such information cannot be considered as public knowledge. In the current era of information explosion, it is very common for the information released to be unattended. We cannot expect that every piece of information randomly sent in the circle of friends will be used. If it is not used, then the information will always be here and will not have circulation. It does not produce the value of promoting scientific and technological innovation, and cannot be regarded as publicity in the sense of patent law.

 

Preliminary Discussion on the Judgment Criteria and Methods of Open Problems in WeChat Friends Circle

By studying the existing views, the author finds that they focus on discussing how to identify the connotation of "public" and "knowledge" itself. The author believes that with the development of science and technology, for the new situations that continue to emerge in practice, when there is no current provision for reference, it can be understood in the light of the legislative intent of the patent law. Specifically, we can start from the original intention of the patent law legislation, and understand the connotation of "known to the public" required by the patent law as a whole.

Article 1 of my country's "Patent Law" (2009) stipulates: In order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development, this law is formulated. Obviously, the legislative purpose of patent law is mainly to promote scientific and technological progress and economic and social development. The "public for protection" is the core content of the patent system. Encourage and promote invention creators to disclose their inventions to the public outside by providing patent protection to invention creators, thereby helping to promote scientific and technological progress and economic development of the country as a whole. Therefore, disclosure in the sense of patent law implies the inherent requirement that "technical information can circulate freely. Only when technical information can circulate freely among unspecified people, unspecified people will be able to know the technical information if they want to know it, thus really promoting scientific and technological progress. On the contrary, if there is no free circulation among unspecified people and only circulates within the scope of a specified person, it is obvious that unspecified people outside the scope of a specified person cannot obtain the information and cannot meet the requirements of the Patent Law on "being known to the public.

Therefore, the author believes that judging whether a published content or technical (including design) information is in a state known to the public depends on whether the technical information has a state of free circulation among unspecified people.

If a technical information is released without restrictions on the object of access, that is, it is not only open to specific people and not open to others, and there are no legal restrictions prohibiting circulation, then it is clear that once the information is released, it enters a state of free circulation among unspecified people. For example, national patent documents, once published, are in a state of free circulation and become public in the sense of patent law. Although the papers in the books or periodicals in the library are open to specific groups of people (those who hold reader certificates or pay for the corresponding papers), these specific groups do not have the obligation of confidentiality, and non-specific people can still obtain relevant information through legal channels, and there is no objection to the disclosure of these contents in the sense of patent law.

If a piece of technical information restricts access to objects when it is published, it is difficult to determine whether it has formed a state of free circulation among unspecified people after its publication. Because the specific person who obtains the information may further transfer the information to people other than the specific person, or it may not be transferred. The transfer may be limited or unlimited. For this reason, various disputes have arisen in practice. Typical situations include the disclosure of WeChat circle of friends and QQ space discussed in this article.

Benefiting from the useful inspiration given by various existing viewpoints and thinking about the original intent of patent law legislation, the author believes that if a published content is published with restrictions on the object of access, the following elements are required for its publication to reach a state of free circulation among unspecified people, none of which is indispensable:

First, the subjective use element: the object that is allowed to obtain the information, that is, the object of acquisition, should have a reasonable motivation to use the technical information. Use here includes both for their own use, to others to use, but also simply spread and share. On the one hand, only if there is a subjective motivation to use the technical information, will objectively in the acquisition of the information through some form of dissemination of the information, so that the information flow outside the scope of the original specific object, the formation of non-specific circulation between people. On the other hand, in the case of subjective use requirements, it is reasonable to regard the release time of the technical information as the public time. Although the real use time (or the time of propagation to the scope outside the limited object) is later than the release time of the technical information, the time difference can be basically not considered. Just like the publication of a publication, the publication date of the publication is generally taken as the publication date. However, the public often cannot obtain the publication immediately on the day of the publication date, and there will be a time lag. Specific to what is a reasonable motive, the author believes that reasonable motives include, but are not limited to, the use of the technical information for their own/other research and development and production, academic research, education and training, communication and sharing and other purposes. For example, it can usually be assumed that the object of acquisition will be motivated to use information in its industrial chain or similar industrial chain, information that is closely related to its life and work.

Second, the element of free circulation: the object of acquisition should not be under the obligation of confidentiality and can freely circulate the information to others. It is not enough to be subjectively motivated; technical information can truly flow freely only if it can flow legally.

Third, the element of objective knowledge: the technical information has been objectively known to a third party other than the object of acquisition. The state of free circulation in unspecified persons requires that circulation has been created between unspecified persons. If there is objectively no circulation of specific objects to people other than specific objects, then it is only a possibility of free circulation. This possibility will not produce value for promoting scientific and technological innovation, so whether it is high or low, It cannot be considered that the requirements of disclosure in the sense of patent law have been met. If there is an objective circulation of a specific object to a person other than the specific object, then it will produce value for the promotion of scientific and technological innovation, and it should be considered that the technical information has met the requirements of disclosure in the sense of patent law.

That is, to examine a content that has been published and whose publication restricts access to the object, a combination of the above-mentioned elements of subjective use, free circulation and objective knowledge can be used to determine whether the published technical information constitutes disclosure in the sense of patent law.

In the actual judgment process, as to whether a published technical information meets the disclosure requirements in the sense of patent law, the author thinks that the following steps can be referred:

The first step is to review whether the technical information of the release is restricted at the time of release. If there is no restriction, it is determined that the disclosure requirement is met; if there is a restriction, the next analysis is carried out. It is relatively easy to judge whether the acquisition object is limited. For example, the disclosure of patent documents belongs to the situation that the acquisition object is not limited. However, for example, the disclosure of WeChat circle of friends, even if the permission is open to all friends, the acquisition object is still limited.

The second step is to examine whether the technical information is actually known to a third person other than the object of acquisition. Take WeChat circle of friends as an example. If the proving party provides evidence to prove that others can view the relevant information of WeChat publisher's circle of friends and cannot view the relevant information of WeChat publisher's circle of friends at the same time (the reason may be whether it is a friend or whether it is a friend but limited to invisible information), it can prove that the information is actually known to a third party other than the object of acquisition and meets the requirements of objective knowledge, continue with the next step of judgment; conversely, if the party claiming disclosure cannot provide evidence that a third party other than the object of acquisition actually knows the information, it is deemed not to meet the disclosure requirements.

The third step is to examine whether the acquisition object has a confidentiality obligation for the content it views. Take the WeChat circle of friends as an example. If there is no evidence to the contrary, it is generally believed that WeChat users have no obligation to keep confidential the information of the circle of friends published by their friends. If there is no obligation of confidentiality, proceed to the next step of judgment, otherwise, it is determined as not meeting the disclosure requirements.

The fourth step is to examine whether the acquisition object has a reasonable incentive to use the information. If the relevant information released by the WeChat circle of friends is information closely related to the life or work of the acquired object, it is deemed to have the motivation to use it. If there is a reasonable motivation to use, it is determined to meet the requirements of the openness of the patent law. On the contrary, if the object of acquisition does not have a reasonable motivation to use, even if the third person objectively obtains the technical information at this time, this aspect can only explain the state when obtaining evidence, but cannot explain the state of free circulation when the technical information is released. Therefore, it cannot be determined that the information has entered the time of "public knowledge"; on the other hand, it cannot be explained that this technical information was spread by the source of the circle of friends. Therefore, in this case, it cannot be determined that the technical information released by the WeChat circle of friends constitutes disclosure in the sense of patent law.

 

 

Combined with the specific application analysis of the case

(I)Case one : "Shock absorber airbag seat case"

In the "Shock Absorber Airbag Seat Case" of Zou Xiaojun v. Wuxi Miaoxin Craft Factory [see (2020) Su Zhizhong No. 67 Civil Judgment], the defendant, Wuxi Miaoxin Craft Factory, asserted the prior art defense, and the evidence it provided included two notarial certificates, one of them is a certificate of checking the pictures published by the plaintiff Zou Xiaojun's circle of friends after logging into WeChat with the mobile phone of the accessory supplier of the shock absorber airbag seat (A for short); The other is the proof that the seller of the shock absorber airbag seat (B for short) checked the pictures published by the plaintiff Zou Xiaojun's circle of friends after logging into WeChat. The relevant pictures were published earlier than the patent application time.

The author attempts to use the criteria and methods of judgment described above to make the case, as follows:

In the first step, it is judged whether the above-mentioned picture disclosure has a restriction on the acquisition object. Since the picture is disclosed by WeChat circle of friends, and the object of acquisition at the time of disclosure is limited and specific, it cannot be directly judged whether it constitutes disclosure in patent law, and further judgment is needed.

The second step is to check whether the picture is objectively known to a third person other than Zou Xiaojun's WeChat friends. In this case, it is obvious that apart from Zou Xiaojun's WeChat friends A and B, the defendants who are not Zou Xiaojun's friends have already learned the relevant pictures published by the circle of friends, that is, they have been objectively known to unspecified third parties other than WeChat friends.

The third step is to examine whether the acquisition object has a confidentiality obligation for the content it views. Zou Xiaojun WeChat friends A and B have no obligation to keep confidential the pictures they obtained from Zou Xiaojun's circle of friends.

Finally, examine whether the acquisition object has a reasonable incentive to use the information. Zou Xiaojun WeChat friends A and B, one is a supplier of accessories for shock absorber airbag seats, and the other is a manufacturer and seller of shock absorber airbag seats. Obviously, they have the motivation to use (e. g., learn from, use, share, etc.) the design scheme of the shock absorber airbag seat picture display released by Zou Xiaojun's circle of friends.

Therefore, in this case, Zou Xiaojun's publication of the picture of the shock absorber airbag seat in WeChat circle of friends should be deemed as the publication in the sense of patent law and the publication time is the publication time of the picture in the circle of friends.

In this case, according to the information learned from a number of shock absorber airbag seat industry insiders, the design of the shock absorber airbag seat before the patent application date has been produced and sold by many manufacturers, in fact, in the state of public knowledge. Therefore, the result of the case judged according to the above method is consistent with the objective reality and the conclusion of the final judgment of the case.

(II) Case 2: "The Door Flower Case"

In the "Menhua Case" of Luo Kui v. Yongkang Xingyu Hardware Factory (hereinafter referred to as Xingyu Factory), the WeChat circle of friends provided by Yongkang Xingyu Hardware Factory was obtained by its investor Shihuiru after logging into its WeChat and checking the circle of friends of two friends in the address book. One of the friends' WeChat nicknamed "Jin Cast Aluminum Door Flower Luo Ling 182 ××××× 1998" and his signature was "fine aluminum door flower, the pursuit of artistic taste. Welcome to buy, snap up the telephone 182 ×××× 1998".

The author attempts to use the criteria and methods of judgment described above to make the case, as follows:

First of all, since the pictures used in the evidence involved are made public through WeChat circle of friends, they belong to the specific situation of obtaining objects. Further examine whether the picture has been objectively known to a third person other than the two WeChat friends circle publishers. In this case, Xingyu Factory provided evidence that its investors used their WeChat to directly check other people's WeChat circle of friends, and Xingyu Factory itself was the object of acquisition. Xingyu Factory has no evidence to prove that the two people's WeChat circle of friends is objectively known by a third person other than their WeChat friends. Therefore, the evidence recorded in the case is not sufficient to prove that the content of the WeChat circle of friends constitutes disclosure in the sense of patent law when it is published. This conclusion is consistent with the conclusion made by the Beijing Intellectual Property Court.

Through the application analysis of the above two cases, it can be seen that the judgment standard and corresponding method combining the three elements of "subjective use element", "free circulation element" and "objective knowledge element" reduce the dependence on subjective judgment when making judgment, and do not depend on the consideration of the dynamic factor of WeChat setting, which is more objective and the conclusion is closer to the truth. In addition, this method does not require proof of content such as WeChat permissions that are difficult to prove, and can avoid the occurrence of completely different cases due to the different allocation of the burden of proof. On the whole, it is a fairer method for both parties.

 

 

 

Conclusion

This paper discusses the openness of WeChat circle of friends, puts forward the judgment criteria of combining the three elements of "subjective use element", "free circulation element" and "objective knowledge element", and gives suggestions on specific judgment methods. In addition to being applicable to the disclosure of WeChat circle of friends, the judgment standard and judgment method are also applicable to the determination of the openness of WeChat group disclosure and QQ space disclosure in various similar situations, hoping to provide some reference for the settlement of such disputes in practice.

 

References

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