Existing technologies should be used to evaluate the patent innovation? Existing technologies stipulated by the Patent Law include publication disclosure, usage disclosure and disclosure in other ways. 


At present, with the rapid development of the Internet Technology, the network evidence stored on the Internet has become one main form of the existing technologies. There are various kinds of network evidence, at least including: Network literature (such as theses in China Masters' Theses Full-text Database), news reports (such as graphic reports on sohu.com), e-commerce (such as sales records and graphic comments on Taobao.com) and social websites (such as graphic publicity in Sina Weibo). However, some network evidence is easy to be tampered with and easy to be deleted but difficult to be restored, and such shortcomings seriously influence the authenticity of its disclosure date and disclosure content, resulting in many disputes in the specific application process. 


Basic facts


On May 30, 2021, entrusted by a company among Globe 500, the writer requested invalidation announcement of the patent right with the invention name of “Solenoid Valve with Redundant Structure”. The reasons for the request of invalidation announcement included that the patent involved in the case was not innovative. The writer fixed three WeChat official accounts as follows by means of webpage notarization: 


(1) The original article 2oo2 Valve Group Used for SIS – Two Solenoid Valves are No Longer in Parallel published in the WeChat official account “Valves and Actuators”, and the writer was the inventor of the patent involved in the case; 


(2) The original article Do You Really Understand Solenoid Valves? published in the WeChat official account “Valves and Actuators” forwarded and collected in 360doc Personal Library;


(3) The article 2oo2 Redundant Valve Group – Two Solenoid Valves are No Longer in Parallel! published in the WeChat official account “Dashboard”;


Due to the similarity of the substantial contents of such three WeChat official accounts, the writer used the first WeChat official account as the existing technology and used its release time as the disclosure time of the existing technology. Then, the writer also used the second and third WeChat official accounts as the evidence of the first WeChat official account.


Focus of the dispute


Has the WeChat official account been tampered with? Was its disclosure content and disclosure date real and credible? 


Patent Collegiate Panel pointed out


“Firstly, based on the nature of the WeChat public platform and the knowledge of the posting and management mechanism, the time of publishing articles on the WeChat public platform is automatically generated by the system, and the subscribers of the official accounts and the general public do not have the modification permission.


Secondly, once the articles are modified after being published on the WeChat public platform, it will prompt that the articles have been modified in different positions on the page. All three articles provided by the claimant are from the WeChat public platform, and the word "Edited" is not shown on the post pages, that is, the posts have not been edited after it is published.


Finally, the claimant selects several similar articles published by the WeChat official account subjects in different fields and selects the WeChat official account article signed and published by the patent inventor. The evidence provided by the claimant proves the disclosure data or disclosure content from different perspectives and different channels. Such evidence is intertwined and corroborated with each other, and provides support for the entire fact to be proved.”


Conclusion of Patent Collegiate Panel


When there is no evidence on the contrary enough to overturn, the authenticity and disclosure date of the WeChat official account can be affirmed based on the standard of high probability.


Lawyer suggestion


When the network evidence such as WeChat official account is used in the patent invalidation announcement procedure, three factors as follows should be considered.


(1) Core factor: Website modification mechanism


Is the release time automatically generated when the network evidence is released? 


Does the release subject have no right to modify the network evidence after it is released? 


Can the modification time/content be traced after the release subject makes the modification? 


The website modification mechanism can meet the network evidence requirements only when the answers to all such three questions are “yes”. 


Therefore, the patent lawyers should also try to notarize and prove the website modification mechanism while conducting the webpage notarization of the network evidence itself. 


(2) Necessary factor: Website popularity and standardization 


Article 56 of Regulations of Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigations stipulates that: “The courts shall examine the authenticity of evidence from the following aspects according to the specific conditions of the cases: (I) Reasons for the formation of the evidence; (II) Objective environment when the evidence is found; (III) Whether the evidence is original copy or original object, and whether the duplicated copy or duplicated object is identical with the original copy or original object; (IV) Whether there is a stake between the person providing the evidence or the witness and the party concerned; (V) Other factors influencing the authenticity of the evidence”.


On the websites of higher popularity, the internal management will be more standard, so there will be lower probability of malicious tampering of the network evidence by the website itself and others; therefore, the network evidence will be more reliable.


Therefore, the patent lawyers should also try to notarize and prove the website popularity, qualifications and credit status while conducting the webpage notarization of the network evidence itself.


(3) Evidence standard: High probability


Clause 1, Article 108 of Explanation of Supreme People's Court on Application of the Civil Procedure Law of the People's Republic of China stipulates that: “With respect to evidences provided by the party concerned that bears the burden of proof, if the people's court is convinced that the existence of the pending facts is highly probable after examination and in combination with the relevant facts, it shall confirm the existence of the facts”. It can be seen that the proof standard of “high possibility” or “high probability” is adopted for civil litigation evidence. 


Section 2.1, Chapter 8, Part IV of Patent Examination Guidelines 2010 stipulates that: “Department of Patent Re-examination and Invalidation Trail of China National Intellectual Property Administration can determine the bearing of the burden of proof combined with the proof ability of the party concerned as well as probability of the fact to be proved and other factors in accordance with the principles of fairness and good faith”. It can be seen that the evidence proof standard for the request procedure of patent invalidation announcement, as the procedure in which the parties concerned participate, uses the above evidence proof standard for civil litigation for reference to a certain extent, that is, the probability of the authenticity of one party’s evidence should be much greater than that of the other party, so as to be beneficial for legal facts to be closer to objective facts. 


Therefore, the “high probability” evidence standard adopted in the patent invalidation announcement procedure raises high requirement for the patent lawyers’ evidence organization ability within the limited time limit for adducing evidence (generally two months) of invalidation announcement request. 


Lawyer reviews


(1) For the evaluation on patent innovation, using the network evidence as existing technology is an exception, and it should still be avoided as much as possible. In other words, the network evidence can be considered as the existing technology only when any portfolio of existing patents, journals and theses is indeed impotent upon sufficient retrieval and analysis.


(2) WeChat official account has become a kind of network evidence with high acceptance probability. However, high acceptance probability does not equal to full acceptance, so the invalidation announcement claimants still need to improve their evidence portfolios as far as possible and form the evidence chain that can be intertwined and corroborated with each other, so as to increase the evidence advantages and the acceptance probability.


(3) Different from the network evidence in civil litigations, for the network evidence in the evaluation on patent innovation, the disclosure permission of such network evidence should also be considered, that is, whether it is in the state that the public can know it as long as they want to know it. Specifically speaking, the network evident in WeChat Moments and QQ Space should not be used as the existing technology because (a) the disclosure permission can be set to be open to everyone or some people, and can be set not to be open to anyone as well, which is highly arbitrary; (b) the settings and adjustments of public permissions cannot be traced.