The internet of things (IoT), physical objects connected to the internet, is fueling an ever-growing number of apps, which in turn is increasing the number of patent applications in almost every area of business, from agriculture to retail to manufacturing.
These internet patents are changing the world of patent law because they aren't quite the same as traditional patents. If you want to create something new on the internet, you might create an app, or a piece of internet software. Then, you might decide you want to patent the new idea that you created.
What Can Be Patented?
A patent gives the owner of an invention the right to use the invention as they wish and it keeps others from using it. Patents are issued by the U.S. Patent and Trademark Office. You can patent any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement to one of these.
Internet Patents as Business Method Patents
A business method patent is a utility patent for a new and useful process. The word "process" is defined by law as a process, act, or method, primarily industrial or technical processes. Internet apps fit into this category.
There are specific requirements for business method patents, meaning they must be:
- Patentable subject matter, not an abstract idea
- Useful, producing a concrete result
- Novel, different from any previous method invention, and not previously exposed to the public
- Non-obvious, something new or unexpected to those in the subject area, not a natural evolution of previous methods
Tinder vs. Bumble: An Internet Patent Lawsuit
Tinder, an online dating site owned by Match Group, has a patented app for users. Soon after, rival online dating site Bumble developed its own app, which worked a lot like Tinder's.
Tinder sued for patent infringement, alleging that several of its patents were infringed on (stolen) by Bumble. Tinder's app allows a user to view a stack of swipeable cards with photos of potential matches. The user can swipe right if interested or left if not. If two users swipe right on each other, a match has been made.
Bumble was founded by three ex-Tinder executives, and Tinder claimed that Bumble copied their swipe-based mutual opt-in premise.
On June 12, 2020, Match Group and Bumble announced that they had reached an agreement to settle out of court. Details of the settlement weren't disclosed.
Is an Internet Application Patentable?
The first question to ask in a lawsuit for an internet patent is whether the idea is patentable. Software applications are based on algorithms, a set of rules to follow in calculations for processes. Is a software algorithm a process, something concrete that deserves patent protection? Or is it an abstract idea that isn't patentable?
In the Tinder vs. Bumble lawsuit, Bumble said the matching algorithm is a general idea and not patentable. Tinder said the swipe plus the matching algorithm was a new invention and patentable.
In 2014, the Supreme Court ruled in a similar case (Alice Corp. v. CLS Bank International) that a patent should not have been issued to Alice Corporation, creator of software for financial analysis. The Court said that while software can be patented, you can't patent an abstract-eligible idea and turn it into a patent-eligible invention. The Court went on to explain that in order to obtain a patent, a company’s idea must actually improve how a computer functions or make other technical advancements.
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 Name" in Field 1.) Someone might claim that the product is not patentable or that someone already patented it.
How to Patent an Idea With Internet Use
To improve your chances of getting your internet patent accepted, and giving it a good chance of standing up in court if it's challenged, you should:
- 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.
- Remember to write for an average non-technical reader at the patent office.
Other Tips for Internet Patents
As you get ready to patent your internet idea, consider these tips:
- The internet is international, and patents must be too. The World Intellectual Property Organization can help you get your patent accepted worldwide.
- Take steps to protect your patent from theft or disclosure during the process. Don't share the idea with anyone except those who need to know. For example, you could require employees and others to sign non-disclosure agreements.
- Consider possibilities for collaboration and licensing after you receive your patent.
- 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.