Is the omnipotent circle of friends really omnipotent in the patent field?

As one of the most popular social software in China, WeChat has a huge user base. According to incomplete statistics, the average daily activity of WeChat users in 20 16 years reached 768 million, and WeChat played a considerable part in people's lives. In such a huge user base, the WeChat circle of friends also records people's lives and work. However, does the information published by WeChat friends circle belong to the existing technology in patent law? In the patent infringement lawsuit No.801of Guangdong Higher People's Court (2065438+June), a patentee applied for a design patent with the theme of "main body of porcelain fittings" and was authorized, while a shop B and its operator C sold products related to "main body of porcelain fittings" after the authorization date. After learning about this, the patentee A collected the sales leaflets of Store B and sued. After Guangzhou Intellectual Property Court sued Shop B and its operator C for infringement, it ruled that the infringement was established, and ordered Shop B and its operator C to immediately stop producing and selling products that infringed the patentee A's design patent right and destroy the remaining infringing products and related molds. Shop B and its operator C compensated the patentee A for infringement losses of 654.38+10,000 yuan. A store B and its operator C refused to accept the above judgment and filed a lawsuit with the Guangdong Higher People's Court. The main reason for the lawsuit is that the products related to the "main body of porcelain fittings" sold by A store B and its operator C belong to the existing designs before the application date. The main evidence is that a WeChat user showed the main body of porcelain fittings in his circle of friends before the application date, proving that the alleged infringing products were made public before the patent application date of this case. The appearance of the patent in this case is as follows: the appearance of the product accused of infringement in this case is as follows: The difficulty in this case lies in whether the information disclosed by the circle of friends will be adopted by the court and whether the existing technical defense is established. Article 23 of the Patent Law (2008) stipulates that the design granted with patent right does not belong to the existing design. Existing design refers to the design known to the public at home and abroad before the application date. In the fifth chapter of the fourth part of the Patent Examination Guide (version 20 10), according to the fourth paragraph of Article 23 of the Patent Law, the existing design refers to the design known to the public at home and abroad before the filing date (the priority date shall prevail if there is priority). Existing designs include designs that have been published, used or known to the public in domestic and foreign publications before the application date. For the time limit and disclosure method of the existing design, please refer to Section 2. 1 in Chapter III of Part II. In the Patent Examination Guide (version 20 10), Section 2. 1 in Chapter 3, Part II, there are three ways to disclose the existing technology, including publication, use and other ways, and there are no geographical restrictions. According to 2. 1.2.3 of this section, other ways known to the public mainly refer to oral publicity. For example, oral conversation, reports, seminars, radio, television, movies and other ways to make the public understand the technical content. Oral conversations, reports and seminar speeches should be made public on the day of occurrence. Reports of radio, television or movies that can be received by the public shall be made public on the broadcast day. It can be seen that in the current Patent Law and Review Guide, there is no way to directly determine that WeChat is open. In the current similar judgments, there are also judgments with different standards. Whether WeChat publicity can be recognized, the author believes that it is necessary to prove the stability of the information disclosed by WeChat friends circle and the scope of WeChat friends circle. First of all, we need to accurately understand the function of WeChat circle of friends. According to the record of Baidu Encyclopedia "WeChat Friends Circle", in the advanced function, "Share your friends circle, you can delete it at any time. Pictures can also be edited under the permission of "Only you can see them". The circle of friends supports "Don't look at TA's circle of friends" and "Don't let TA look at my circle of friends". At the same time, according to the author's experience, it depends on the circle of friends of specific WeChat users. First, you need to add specific WeChat users as friends. Secondly, after becoming friends with a specific WeChat user, it is necessary for the specific WeChat user to disclose the circle of friends information so that the author can see the circle of friends information of the specific WeChat user. At the same time, certain WeChat users can delete or hide the information of friends circle at any time after the information of friends circle is made public, which makes the stability of information disclosure questioned. According to China National Intellectual Property Administration He Yuefeng's Patent Legal Knowledge, "being known to the public" refers to the state that anyone in the public can know if he wants to know. Therefore, the author believes that in order to get the support of the judges, the following three points need to be met at the same time: 1, anyone can directly add a specific WeChat user as a friend, and there is no risk of being refused to be friends, that is, a specific user is in an unauthenticated friend-adding state. And after adding a specific WeChat user as a friend, you can find the friend circle information of the specific WeChat user. 2. It is necessary to prove to the judge that after the information of the circle of friends is made public, all WeChat users are open, not targeted at specific users. 3. Since the information of the circle of friends was made public, there has been no change, including the public status. The above three points are extremely difficult to obtain evidence, and Tencent's background support is needed to provide convincing evidence. However, in practice, in order to defend the information of WeChat friends circle as the existing technology, it needs the support of Tencent's background data before it can be recognized as the existing technology. Because for ordinary WeChat users, it is impossible to know whether the verification status of adding friends, the public status of friends, and the public status of WeChat users have been modified within a long time. This will lead to the situation that the information of WeChat friends circle without the support of teng letter background data is difficult to get the support of the judges, or it will be recognized. However, in the judgment of Guangdong Higher People's Court (20 16) on Zhong Yuemin's No.801patent infringement lawsuit, the collegial panel held that "WeChat friends circle is essentially different from products that are open to unspecified users, such as blogs and Weibo, and has certain privacy. The photos of WeChat friends circle submitted by the above personnel cannot be used as a comparison document of existing designs. " In the judgment of the case, it was specifically stated that "our court believes that' being known to the public' as stipulated in Article 23 of the Patent Law means that the unspecified public can obtain and know the state of the existing design. First of all, the content posted by WeChat users in the circle of friends is not open to all network users, and its content is only visible to friends of WeChat users, and others cannot search and consult on the network platform through keywords. Secondly, even for WeChat friends, WeChat users can make some or all of their friends unable to read their published friends circle information through relevant settings. In this case, Zhong Yunlin, the sales department of Continental Sanitary Ware, could not prove that when "Dongge" released the pictures of comparative design on 201410+065438, its circle of friends was open to all friends at that time. Therefore, even though the WeChat circle of friends spreads rapidly, it is still essentially different from products that are open to unspecified users, such as blogs and Weibo, and has certain privacy. The photos of WeChat friends circle submitted by Ou Mo Sales Department and Zhong Yunlin cannot be used as a comparison document of the existing design. The appeal grounds of Ou Mo Sales Department and Zhong Yunlin could not be established, and the court rejected them. "It can also be seen from this case that in order for the information disclosed by WeChat friends circle to be recognized and supported by the court, the appellant needs to provide further relevant evidence to prove whether the information of a specific WeChat user's friends circle is in a state that anyone can know if he wants to know. Tencent background needs to provide data support, otherwise it will easily lead to the information disclosed by WeChat friends circle not being recognized. Therefore, it is extremely difficult for WeChat friends to publish information as a prior art in practice. However, the functions of WeChat are constantly improving. We will wait and see what kind of judgment will appear in such cases in the future!