How Do Internet Patents Work?
Tinder v. Bumble and Patents in the Internet Age
Patents, like everything else in the legal and business world, are changing because of the internet. If you want to create something new on the internet, you might create an app, a piece of internet software. As of the third quarter of 2018, there are more than 2.1 million apps available online. Then, you might decide you want to patent the new idea that you created. Can apps be patented?
Internet patents are changing the world of patent law because they aren't traditional in the world of patents. They aren't physical objects, like a new type of screwdriver or a new and improved way to clean carpets.
What Can Be Patented
The U.S. Patent and Trademark Office says you can patent:
"any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof."
A recent example of a patent dispute explains the issue with internet patents.
Tinder v. Bumble: A New Kind of Patent
It's all about a "swipe." You know, "an act or instance of moving one's finger across a touchscreen to activate a function."
Tinder, an internet dating site owned by Match.com, has one, and they have a patent for it. Then Bumble, another internet dating site, had one too. And Bumble's swipe worked a lot like Tinder's. (You could say that Bumble "swiped" it (stole it) from Tinder).
So, Tinder sued for patent infringement, saying,
The facts around this lawsuit are simple: a company can not steal trade secrets and confidential information nor infringe on patents without repercussions.
The Tinder v. Bumble lawsuit isn't quite that simple, but for our purposes, we'll focus on the patent infringement aspect of this lawsuit.
What Patents Were Swiped (Stolen)?
Tinder's lawsuit alleges that several different patents were infringed on (stolen) by Bumble. One was the swipe, which, according to the New York Times, is
the way Tinder portrays profile photos (known as cards), which appear to stack on top of each other as a user swipes through them on the app.
The second is about Tinder's algorithm (programmed set of instructions) for matching, the way the app pairs users.
A Previous Supreme Court Case
Algorithms are turned into software (apps) on computers. Is software a process, something concrete that deserves patent protection? Or is it an abstract idea, that isn't patentable?
In 2014, the Supreme Court ruled in a similar case (Alice Corp. v. CLS Bank International) that "using a computer to implement an abstract idea does not make that invention eligible for a patent." The Court said that a patent should not have been issued to Alice Corp. because, while software can be patented, you can't patent an abstract idea and turn it into software. The Court went on to explain that, "to obtain a patent, a company's idea must actually improve how computer functions or make other technical advancements."
But doesn't a swipe improve how a computer functions? Tinder and Bumble have taken their stands. Bumble says the matching algorithm is a general idea and not patentable. Tinder says the swipe plus the matching algorithm is a new invention and patentable. It's complicated, and as usual, the legal system is still trying to figure it out.
How to Patent an Idea with Internet Use
Internet patents are sometimes called "business method patents," because they patent ways to do things on the internet. Upcounsel (an attorney-client matching site) says that a business method must be more than just an idea. There must be "a useful, concrete and tangible result." In other words, it must have real-world value and include specifics and details of how the idea works on a computer.
To improve your chances of getting your patent accepted and giving it a good chance of standing up in court if it's challenged:
- Begin with an overall description of what the idea does and how it works with other apps in your system.
- Include the computer code
- Make sure all your descriptions are as specific as possible
- But also remember to write for an average non-technical reader at the patent office.
Other Considerations With Internet Patents
You can apply for and receive a patent but it might be challenged in court. Tinder, for example, received a patent for the applications in the lawsuit (you can search for Tinder's patents by putting "Tinder" in Term 1 and "Applicant" in Field 1.) But that doesn't mean the patent will stand up in a patent lawsuit. Someone might claim that the thing is not patentable or that someone already patented this thing.
The world of the internet is international, and patents must be too. The World Intellectual Property Organization can help you get your patent accepted worldwide.
Consider how to protect your patent from theft while increasing possibilities for collaboration. The Internet of Things (IoT) includes smart devices in your home and elsewhere, which means collaboration with others.
Finally, get advice from a patent attorney or allow a patent agent to help you walk through the process to improve your chances of having your internet patent accepted.