As noted in our prior post, Tinder is hoping to use its intellectual property to help slow down a competitor run by Tinder's own former employees. While Tinder is relying on various theories, including utility patent protection, trademark, trade dress, etc., it is also relying on design patent infringement. Some software companies have realized the strategic value of design patent filings for their graphical user interface (GUI). In particular, companies using advanced patent filing strategies have taken advantage of design filings on limited aspects of the displays created by their software. Tinder's example is particularly enlightening and shows just how broad design patents can be - giving software companies a strategic tool that can often fill the gaps between trademark and utility patent protection.
Here, Tinder's design application, D 798,314, shows a display of the user interface that accompanies Tinder's app. The design patent essentially protects two related configurations of two rectangles in relation to one another (one for swipe left, and one for swipe right). How can Tinder's design patent be so broad? Easy. Tinder realized, like a select few other software companies aggressively protecting their intellectual property, that design patent protection could be used to protect unique design elements of their display. They further realized that such design patents do not need to be limited to every aspect of the display in combination (which would be quite narrow), as a competitor is likely to copy only select features. Here, Tinder's design patent protects the design element of two sets of two rectangles (in solid), without being restricted to the many other design elements of the display (in dashed). The figure below shows the first of the two claimed relationships of the rectangles (one for swipe left, and one for swipe right).
Bumble's app has what appears to be a very similar display, including images that show the two rectangle outlines in a similar combination of swipe left and swipe right. Whether the designs are similar enough will be determined according to the ordinary observer test.
Whether or not Timber is ultimately successful, its approach here show a strategic use of design patents that should be eye-opening to many in the business of managing and growing software companies.