Patenting Internet and Online Dating Apps: The Current State of Affairs

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Since the dawn of humankind, people have searched for other people for a variety of reasons including cooperative food gathering, safety by mutual or combined protection, companionship, friendship, romance, and marriage. In about the last quarter century, and particularly for those seeking friendships, romantic partners and spouses, “there are apps for that” including Match, Bumble, Tinder, eHarmony, OKCupid, Clover, POF (Plenty of Fish), and many others. Generally, these apps employ proprietary algorithmic matching software programs or proprietary questionnaire (or polling) software programs to identify potentially compatible or suitable candidates in response to users’ search requests.

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As one might expect, many patents directed to algorithmic and polling “matchmaking” methods and systems have been granted. After all, discovering and then patenting the exact formula for “finding love” would be almost unimaginably valuable. While the operators of matchmaking websites tout their success rates regarding affairs of the heart, those operators with patented systems have not enjoyed the same success rates – no matter how high or even how low the unverifiable matchmaking success rates actually are. In fact, almost every matchmaking method (and system) patent that has been challenged under Section 101 of the Patent Act since the Supreme Court’s landmark decision in Alice Corp. v. CLS Bank Int’l[1] has been invalidated for claiming unpatentable subject matter. It turns out that Alice is the harshest of mistresses. (The English idiom “a harsh mistress” means someone (or something) that must be obeyed yet has exacting standards that are difficult, if not impossible, to satisfy.)

Most recently, eHarmony, Inc. and The Meet Group successfully invalidated claims of a family of related patents that are all directed generally to the idea of social networking, i.e., discovering members of the same social network in the same vicinity and exchanging member’s personal information.[2] According to the patents, individuals can “use their mobile phones to discover others by personal attributes, such as by photos and names, after which, the two parties can exchange information over the internet.” The invention “provides a system and method that enables free discovery of others who also desire social interaction, but without being constrained by hardware compatibility issues inherent in mobile devices by different manufacturers.”

By way of brief summary only, Section 101 of the Patent Act defines patent-eligible subject matter. It states, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” However, abstract ideas are not patentable, as the Supreme Court reiterated in Alice; and in Alice, the Court established the now-familiar two-step framework for determining patent-eligibility under Section 101. In the first step, the court must determine whether the claims at issue are directed to an abstract idea.  If the answer to the question is “no,” then the patent is not invalid for claiming ineligible subject matter under Section 101. If the answer to the question is “yes,” then the court proceeds to step two, where it considers “the elements of each claim both individually and as an ordered combination” to determine if there is an “inventive concept—i.e., an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.

In eHarmony, the district court found that the representative claims of the patents-in-suit were directed to the abstract idea of social networking. The court noted that other district courts have similarly found patents related to the idea of matching people based on criteria such as personality traits or location to be abstract, and that the basic concept of controlled exchange of information about people as historically practiced by matchmakers and headhunters is an abstract idea. It is at least a fair bet that eHarmony and the consistent precedent cited by the district court in that decision dooms any pending and future efforts to enforce patents directed to dating apps.

Having found the patent claims directed to an abstract idea, the eHarmony court proceeded to Alice step 2 and, unsurprisingly, found no “saving inventive concept” in any of the challenged patent claims. As the patents themselves made clear, the invention is implemented with “available technology and standard protocols available today,” including a “standard cell phone,” a “cellular phone network,” “existing standard Bluetooth technology,” and “Wi-Fi.” Quoting prior similar precedent, the district court found that nothing in the claims required anything other than “off-the-shelf, conventional computer, network, and display technology for gathering, sending, and presenting the desired information.” It is difficult to imagine any dating app that cannot be described exactly the same way.

Last year, a Jedi Technologies patent was successfully invalidated on Section 101 grounds by the developer of the SCRUFF and Jack’d online dating apps.[3] In Perry Street Software, the district court found the patent to be directed toward the abstract idea of automated matchmaking, and that the patent’s claimed five-step process for matching compatible chatroom users did not contain any inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application. Finding the patent to be directed to automated matchmaking was not difficult for the court, as the patent itself states that it is “directed to a new system designed to unite chatters for the purpose of creating new interpersonal relationships,” “chatters” being those who “chat.” 

The Perry Street Software court noted that four related patents owned by Jedi Technologies had been invalidated in 2017 as claiming patent-ineligible subject matter under the two-step Alice framework, and that those previously-invalidated patents rested “upon the notion of human compatibility and matchmaking, where an individual learns about the personalities and interests of two different individuals and, based upon certain criteria, determines whether the individuals are compatible.” Moreover, in the 2017 case the district court held that the patents did nothing more than recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet, which was obviously not sufficient to save the claims under Alice step 2. 

Rather than rely on the earlier case, however, the Perry Street Software court independently found Jedi Technologies’ newly asserted patent to be “clearly directed toward the abstract idea of finding and introducing individuals to others with whom they might be compatible; in other words, matchmaking – an idea that has existed for centuries, if not millennia.” And, as had been previously held by another court, nothing about how the claimed invention was implemented with generic, off-the-shelf computer and telecommunications technology could save them from Alice.

A dating app patent owned by Trinity Info Media, LLC and directed to the abstract idea of matching users who gave corresponding answers to a question was invalidated under Section 101 in 2021.[4] In 2019, Match Group LLC, Plentyoffish Media ULC, and Humor Rainbow Inc., operators of the Match.com, POF, Tinder and OKCupid online dating platforms, successfully challenged a patent inauspiciously titled “Method and System for Establishing and Using a Social Network to Facilitate People in Life Issues.”[5] Less than a year later, Humor Rainbow successfully challenged another patent drawn to the abstract ideas of human compatibility and matchmaking, with the invention described as being implemented using prior art methods and apparatus.[6] There are still more examples.

The lesson to be learned from all of this is unmistakable: online dating apps and patents are not compatible with each other. Even if patents and online dating apps do manage to “hook up,” all such relationships are transient, at best, and very costly to everyone involved. Alice is a harsh mistress.