Tinder v. Bumble -- Even a Software Company Sometimes Needs to Use Its IP

Actually the heading of the case is Match Group, LLC v. Bumble Trading Inc. The history between Bumble and Tinder has been documented in various articles, and the complaint (available here) obviously has some spin from Tinder, focusing on the idea of former employees leaving and unfairly creating a competing site/app that does the same thing. Of course, absent some form of intellectual property protection, there really is no other way to stop this kind of behavior.

The complaint alleges, among other things, patent infringement (both utility and design). Tinder is relying in part on a relatively recently issued patent (US 9,733,811). Looking at the prosecution history of the '811 reveals some interesting issues. The case was allowed after a first office action in which the rejection was overcome through the use of a Rule 1.31 affidavit. The examiner had cited a reference (Janssens, US 20140040368), which had a priority date of August 6, 2012. The '811 application had a filing date of Oct. 21, 2013 and claimed priority to a provisional application filed March 15, 2013 (as well as a much older previous application from 2008). Obviously unable to rely on the 2008 date, Tinder moved to disqualify the Janssen reference by proving earlier conception.

Thus, Tinder is required to prove conception prior to August 6, 2012 and diligence up through at least the provisional date of March 15, 2013 (assuming the provisional application supported the claims), or prior conception with an actual reduction to practice. Here, Tinder's affidavit alleged actual reduction to practice by provide example source code and screen shots of a working application that was developed prior to the August 6, 2012 date. Note that the screen shots do not appear to be from before August, 2012; rather, they appear to recent but generated from the prior-developed software.

While the Examiner accepted this evidence, it will for sure provide a rich source for discovery and future attacks in the litigation. Tinder will no doubt have to prove that the reduction to practice included every element in the issued claims, among many other issues. However, that is not all. It turns out the person that signed the declaration was not listed as an inventor, and Tinder had to amend inventorship. This too will be a potential point of attack for the defendants in the litigation.

Tinder will also likely attack the patent through an IPR, as well as alleging that the claims are invalid under Section 101 before the District Court judge. However, Tinder has wisely maintained multiple continuation applications (15/016,662 filed on 02-05-2016, recently allowed, and 15/676,773 filed on 08-14-2017, unavailable at present in PAIR) that should help reduce the negative impacts of an IPR.

It will be interesting to watch this case to see how it develops. But in any event, software companies who say they don't need patents should re-evaluate what they would if they find themselves in a similar situation where the "stuff" is hitting the fan and perhaps the company's future is at stake.