The IP holders shall pay attention when sharing or posting photos on social networking website. According to a judgment newly issued by the Supreme People’s Court (“SPC”), photos on Qzone (a social networking website based in China and created by Tencent, which is similar to Facebook and MySpace) could be considered as prior design when determining novelty of a design patent if certain conditions are met. Below is a brief of this case.

This case is derived from an invalidation action against a design patent held by an individual Liu Xiaosheng. The invalidation was lodged by a company Chaozhou Chaoan District Xiang Xing Fa Electronic Technology Co. (“Chaoan XXF”). Chaoan XXF argued that photos of the design have been disclosed in a Qzone album and therefore shall be considered as a prior design. After reviewing, the CNIPA held that there is no evidence that the concerned Qzone was accessible to the public and made a decision to maintain Liu’s design. Dissatisfied with CNIPA’s decision, Chaoan XXF appealed to Beijing IP Court.

The Beijing IP Court sided with Chaoan XXF and held that the design photos in the concerned Qzone were in a state where the public could obtain them if they wanted to before the filing date of the concerned patent, which shall be deemed as the prior design of the patent. The Beijing IP Court decided that the CNIPA’s decision should be revoked and ordered the CNIPA to make a new decision.

Liu Xiaosheng appealed the case to the SPC. The SPC held that, if a cyberspace requires authorized access (Qzone, etc.) and is generally for commercial use, it shall be presumed to be open to the public, except where there is evidence to the contrary that the cyberspace is not open or is open only to specific persons. The SPC upheld Beijing IP Court’s judgment in favor of Chaoan XXF.

Source:
http://www.chinaipmagazine.com/news-show.asp?25467.html (Chinese)