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Can you put a patent on love?

The patent litigation between dating app sites Tinder and Bumble has raised the stakes in digital patent protection. Tinder’s parent company, Match, filed suit against Bumble over the concept of swiping left or right. Match claims Bumble infringed on Tinder's intellectual property by using the concept of swiping on its dating app. Bumble claims the concept of swiping left or right is just an abstract idea. You cannot patent an abstract idea under U.S. law.

Patent law in the internet age

Match points out that their swiping technology is more than an abstract idea. It exists in a real app used by thousands of people. Patent law historically has required that you take your abstract idea and apply it to an actual invention, whether it be a drug, a mechanical device or more recently, an existing technology.

The internet opened the door to many new possibilities. The idea of keeping a calendar is not new or inventive, and you could not get a patent for that. Keeping a calendar online, however, was a different story. Suddenly, you had a new technology to apply to ideas, spurring new patents. Matchmaking is as old as time, but matchmaking on the internet? That’s a pretty new concept. At least, it was at the time.

Alice Corp. v. CLS Bank fallout

The wave of computer-related inventions came crashing down with the 2014 U.S. Supreme Court case of Alice Corp. v. CLS Bank. In that case, the court decided that taking an abstract idea and adding a computer to it no longer makes it patentable. The court stated that the patent claim must go through a second step of containing an “inventive concept” so that the patent is “significantly more” than an abstract idea.

Unfortunately, the court did not provide much guidance as to what that may look like. Lower courts have struggled to apply the Alice Corp. case to real situations. Despite the ambiguity, courts have invalidated hundreds of patents since 2014. For example, a federal court in OIP Technologies v. Amazon.com stated that a “method of pricing a product for sale” was not patentable, even though it involved complex data gathering and statistics analysis, because the process used “conventional computer activities or routine data-gathering steps.”

The patent claims that have survived this fallout seem to have a very narrow scope. In DDR Holdings v. Hotels.com, the court upheld a patent that solved a specific problem of visitors to a website being moved off their page when they click on an advertisement. The court decided this was a unique and specific solution to a problem on the internet.

What does this mean for Tinder and Bumble?

Patent protection has always been a balance of giving credit to inventors, rewarding them for their innovations, and the needs of a market-based economy. The court system is still trying to strike that balance. Matchmaking on the internet is no longer a patentable idea. What about swiping left or right? Is that just an abstract idea or is it an inventive concept? We will have to wait and see which way the courts go. One thing seems clear: as technology advances, developers will have to become even more creative if they want to patent their ideas.

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