"This article analyzes the public accessibility of WeChat evidence based on patent invalidation and litigation cases, aiming to offer a relatively objective practical review and reflection on the use and recognition of WeChat evidence in such proceedings."

I. Introduction

With an increasing number of businesses and enterprises showcasing, promoting, or selling products via WeChat, the use of WeChat evidence in patent invalidation and litigation proceedings is becoming more common. WeChat evidence is often introduced as prior art/prior design in these procedures. However, current laws do not clearly define the use of WeChat-related evidence, leading to inconsistent practices. The core issue lies in whether WeChat evidence meets the patent law's standard of public disclosure—specifically, whether it is disclosed to an undefined group of the public.

This article examines the public accessibility of WeChat evidence through the lens of patent invalidation and litigation cases, aiming to provide a relatively objective practical review and reflection regarding the use and determination of WeChat evidence in such contexts.

II. Understanding "Public Disclosure"

According to Article 22 of the Patent Law, "prior art" refers to technology known to the public before the application date, whether domestically or internationally.
Article 23 of the Patent Law similarly defines "prior design" as a design known to the public before the application date.

Per Section 2.1, Chapter 3, Part II of the Patent Examination Guidelines, prior art includes technology that was disclosed through publications, public use, or made otherwise available to the public domestically or internationally before the application date (or priority date, if applicable).

Prior art must be technology content that the public was able to access before the application date. In other words, it should be accessible to the public and contain substantive technical knowledge.

Thus, under the relevant Patent Law and Patent Examination Guidelines provisions, whether WeChat evidence qualifies as prior art/prior design depends on whether it was disclosed to an undefined public audience on the WeChat platform, and whether the information was available to any interested party without restriction.
Specifically, to determine if WeChat evidence meets the patent law's requirement for public disclosure, it is necessary to assess whether it was disclosed to specific individuals or to those under a confidentiality obligation. Disclosure limited to specific individuals or those under confidentiality is clearly not considered public disclosure under the Patent Law and therefore cannot be used to evaluate novelty, inventiveness, or to assert a prior art defense.

III. Divergent Recognitions of "Public Disclosure" for WeChat Evidence

WeChat evidence mainly appears in four forms:Evidence disclosed via official WeChat public accounts; Evidence disclosed via WeChat Moments (朋友圈); Evidence disclosed via WeChat chat records; Evidence disclosed via WeChat group chat messages.

1. WeChat Public Accounts

Generally, after content is published through a WeChat public account, any WeChat user can access it via the WeChat search function or external engines like Sogou. Thus, such content is typically considered disclosed to an undefined public audience and meets the public disclosure requirement under patent law.
However, as noted in Invalidation Decision No. 35514, if content from a WeChat public account is only accessible via a specific URL, and cannot be found through the public account's history or search engines, its public nature is questionable and it may not meet the Patent Law standard for public disclosure.

2. WeChat Moments

The determination of whether WeChat Moments disclosures meet the Patent Law's standard has evolved from almost total rejection to partial acceptance.

Before 2019, most decisions (e.g., Invalidation Decisions Nos. 35339, 33245, 35300, 35910) held that WeChat Moments were a private social space limited to specific individuals and did not constitute public disclosure.

However, as WeChat's functionality and usage expanded, especially with its adoption for marketing and promotion (e.g., by "micro-merchants" or 微商), examination and judicial practices have increasingly recognized the potential public nature of Moments posts.

For instance, Invalidation Decision No. 51942 found that if a WeChat account clearly shows intent to promote and sell products and does not restrict friend additions, posts in Moments could be presumed publicly available, satisfying the Patent Law's disclosure requirement.

Similarly, appellate decisions such as (2020) Yue Min Zhong No. 2308 and (2024) Zuigao Fa Zhi Xing Zhong No. 1140 affirm this approach.

Based on recent practice, not all Moments posts automatically satisfy public disclosure requirements. From practical experience and cases, to assert that a Moments post constitutes public disclosure, the following four factors can be considered:

First, the post should introduce a specific product. Merely stating a product name or offering minimal description may not demonstrate sales intent or allow the public to fully understand the product, weakening the claim of public disclosure (e.g., Invalidation Decisions Nos. 47616, 54995, 39305).

Second, including contact information or sales channels in the post enhances the likelihood of public dissemination (e.g., Invalidation Decisions Nos. 55070, 52035).

Note: Contact details embedded in a WeChat nickname are generally not recognized as credible since nicknames can be freely modified without leaving a trace (e.g., Invalidation Decision No. 47616).

Third, the post should demonstrate a clear promotional intent. Posts without promotion purposes lean toward private life sharing and are not considered public disclosure (e.g., Invalidation Decision No. 39305).

Fourth, providing a relatively complete listing of Moments posts showing the user primarily uses the platform for product promotion over a sustained period strengthens the case for public disclosure (e.g., Invalidation Decision No. 52522).

When these factors converge, it can be inferred that the posted information was intended for public marketing and widely disseminated, thus meeting the public disclosure requirement.

Conversely, if Moments posts mainly consist of private life updates and the initial publication status (public/private) cannot be verified, the chances of recognizing public disclosure are lower.

3. WeChat Chat Records

WeChat private chats are inherently private and typically not publicly disclosed. Therefore, product information exchanged in private messages generally does not meet the Patent Law's standard of public disclosure (e.g., Invalidation Decision No. 51598).

However, with the rise of micro-businesses, chat records documenting a full sales transaction (including negotiations, payments, delivery) may establish proof of sales disclosure (i.e., "use disclosure") if sufficiently detailed.
For example:

In Invalidation Decision No. 59219, incomplete transaction evidence could not prove public sale before the application date.

In contrast, Invalidation Decision No. 48422 accepted WeChat chat records that fully documented a sale and supported public disclosure.

Thus, unless a complete sale process with supporting documentation is proven, WeChat chat records alone are insufficient to establish public disclosure.

4. WeChat Group Chat Messages

There are three primary viewpoints regarding whether WeChat group messages constitute public disclosure:

First View: Group chats are similar to private chats but involve multiple people. The key is whether the evidence chain proves a completed sale. (e.g., Invalidation Decisions Nos. 55649, 567887, 428001).

Second View: Group chats resemble QQ groups; thus, the test is whether the members had explicit or implicit confidentiality obligations.

Third View: Group chats are like Moments posts but are inherently private unless structured as promotional groups open to the general public (e.g., Invalidation Decision No. 58046).

Currently, most invalidation and litigation cases lean towards the first viewpoint.

IV. Conclusion

Whether WeChat evidence constitutes public disclosure under patent law must be judged based on the type of WeChat evidence—whether it is from a public account, Moments post, private chat, or group message.

Businesses are advised to plan their patent strategies before publicly promoting products to avoid impacting patent stability or future enforcement actions.
For defendants or invalidation petitioners, besides collecting evidence from Moments, it is also possible to collect from public accounts, private chats, or group messages.

In conclusion, the determination of WeChat evidence as public disclosure should be made by comprehensively considering the evidence's characteristics, the user's identity, posting frequency, and content, aligned with the legislative intent to balance patent owners' and the public's interests. Protecting intellectual property while ensuring public interests are respected is essential to promoting social progress and development.