Tinder swiped right on a lawsuit against Bumble last week, but their lawsuit has more than just surface flaws. Tinder’s lawsuit alleges a number of forms of intellectual property violations—but basically, it comes down to claiming that they own the idea and the design of swiping, especially for a dating app.
A Brief History Of Swipe
Of course, the idea of swiping (and even the word) isn’t new. It’s not even new in the context of a smartphone app. The iPhone was introduced in 2007 using the words “to go through pictures, I just swipe them.” And by 2009, Palm’s webOS used swiping on cards, including swiping cards away, in its multitasking interface. (Not to mention “swipe to unlock,” the focus of a number of lawsuits back in 2012.) All pre-date Tinder and Tinder’s patents.
And yet, Tinder claims they own the word “swipe.” Of course, they didn’t file the trademark originally—Tinder acquired the SWIPE trademark from another company in 2015.[1. Interestingly, that company had a swipe-based dating app as well, created around the same time as Tinder filed for their utility patentAs distinguished from design patents and plant patents. Generally, references to 'patents' are to utility patents., significantly before they filed for their design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs.. It might even be prior artPrior art is the knowledge in the field of a patent that was publicly available before the patent was filed., depending on when Tinder can prove to have invented the subject matter in their design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs..]
For that matter, Tinder even admits that it wasn’t just the trademark they didn’t come up with. Turns out, Tinder didn’t come up with the swipe idea for Tinder—according to Tinder’s former chief creative officer, the user interface designer “ripped off [swiping] from the flash-card app he worked on for Chegg.”
So it’s questionable whether Tinder came up with the idea in the first place, much less the word. But sometimes companies succeed with ideas they acquired elsewhere. So, what about their patents?
Failure By Design PatentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs.
One of Tinder’s allegations concerns a design patent—D798314. That patent claims the following:
The broken lines are illustrative and not part of the claim. The claimed design—the two cards—is shown only by the solid lines.
Unfortunately for Tinder, their design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. isn’t a match for Bumble’s product. The design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. doesn’t cover what Tinder claims it does.[2. It’s also important to remember that it doesn’t matter what Tinder itself looks like—what matters is the drawings in the patent.]
When claiming an animation on a computer, applicants are supposed to provide a sequence of images showing the various states of the animation as well as some specific text in the specificationThe section of a patent that provides a description of the invention and the manner and process of making and using it. It must enable the "person having ordinary skill in the art" to reproduce and use the invention without undue experimentation. A patent's claims are interpreted in light of the specification.. Tinder did neither, meaning that their patent doesn’t cover the animation of swiping at all—all it covers is the two particular arrangements of cards of the shape shown, where one relatively square card is diagonally overlying the other, rotating around an axis point above the screen.
Other overlying arrangements of cards don’t qualify; only the ones they show. So, let’s take a look at the accused.
Bumbling The Infringement Allegations
Here’s what Bumble looks like.
The cards are different shapes from those in the design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs., including the use of rounded corners rather than square corners and a more rectangular shape.[3. At this point, I think it may be impossible to discuss design patents without somehow running into a rounded corner issue.] And the cards rotate around a point below the screen, not above it.
In other words, Bumble’s design has significant differences from the claimed design, differences that an ordinary observer faced with the app and the patent would notice.
Nobody Wants To Date A Fallacious Concept
That’s not the only problem, though. Tinder’s arguments are a perfect example of Sarah Burstein’s “concept fallacy” in design patents—the idea that a design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. covers a general concept, rather than a specific design.
Tinder wants to think their design patents cover the concept of a swipe interface in a dating app. But even if they’d actually filed a patent that showed an animation, as opposed to a static arrangement of screen elements, they still wouldn’t own the concept—they’d own the specific animation they’d claimed.
This isn’t an unusual circumstance—Prof. Burstein regularly notes cases of plaintiffs engaging in this fallacy on her Twitter account.
But just because the concept fallacy applies doesn’t mean that there isn’t a lawsuit that a defendant has to respond to. Just like with patent trolls, sometimes companies will settle despite the substantive flaws in an allegation, just to make the case go away. The application of design patents creates the same risks of chilling innovation as any other application of IP.
We recognize this problem when it comes to utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. patents; it’s time to recognize that design patents create real problems when over-broad enforcement is available.