Patent Attorney and Founder
In 1799, a fledgling US government granted its first business method patent to Jacob Perkins, a man who had invented a way to detect counterfeit currency. Today, the USPTO is nearly unrecognizable, but the office still issues hundreds of business method patents each year.
Today’s patents, however, look a little different. Many of the business method patent applications the USPTO sees are internet methods.
Patents for business methods and internet patents are essentially treated as interchangeable. That isn’t entirely accurate, though. While just about all internet patents are patents for business methods, the reverse is not true. An internet patent, as the name implies, protects digital content or code, and it’s a relatively new option for inventors.
However, there are a few things to consider when you decide to begin applying for an internet patent. In some cases, 20 years of protection is about all you can hope to aim for. In others, you may be able to keep your invention all to yourself in perpetuity by treating it as a trade secret.
Business Method Patents and Internet Patents
Internet patents are a type of business method patent that apply specifically to the world wide web. Before their acceptance, many individuals who came up with business process ideas found little protection through the US Patent and Trademark Office. Often, their ideas were disqualified because they did not qualify as “concrete”—and therefore were not eligible for a patent.
This all changed in the 1990s as internet-based businesses became common. The USPTO adopted standards that held internet-based processes to the same standards as regular inventions, rather than writing them off as simply “abstract.” The court system continued to refine these decisions over the years.
Does Your Invention Qualify for an Internet Patent?
One major landmark case occurred in 2014. In Alice v. CLS Bank, a company was seeking to protect an electronic escrow program they created. Alice’s patent was rejected under a test that later became the standard. The two-part test uses the following criteria:
- Is the invention a process, machine, manufacture, or composition of matter? If it is one of these, it is considered eligible for a patent. If it does not fall into one of these four categories, it is considered abstract, although it may still be eligible for a patent in step 2.
- Is it an “inventive concept”? If the examiner thinks it is, they can grant a patent on these grounds.
Basically, this means that for an internet patent to be valid, the idea needs to improve the function of the computer itself or provide some other technological advancement not seen before. For obvious reasons, this method is now called the Alice test.
One example of an internet patent comes from the well-known online dating app Tinder, which connects individuals via a “mutual interest” swiping method that it claimed was unique and qualified for protection. The company applied for and received a patent for its matchmaking process in 2013.
Competitor Bumble attempted to invalidate the patent, claiming that the process of combining matchmaking with swiping was abstract. In a lawsuit, the company alleged that Tinder had essentially patented “matchmaking on the Internet.” The two companies would eventually settle their cases out of court, allowing Tinder’s patent to stand.
Why Choose an Internet Patent?
Intellectual property law is full of nuances. Although it can be frustrating, it’s complicated for a very good reason: ideas come in all shapes, sizes, colors, textures, and flavors, and they require different types of protection. Before you decide to apply for an internet patent, consider whether your intellectual property would be better classified as a trade secret.
Your invention might qualify as a trade secret if:
- It isn’t generally known and revealing its details would harm your brand (and your profits)
- Its details would be valuable to others
- It is something you’ve taken measures to keep unknown
Trade secrets don’t have an expiration date, and they do qualify for legal protection. They also don’t require an application; a trade secret becomes a trade secret once it meets the three criteria above.
You are, however, responsible for taking reasonable measures to keep them secret. Although you could just put a “Private, Do Not Open, This Means You” sticker on a manila folder and hope for the best, we don’t recommend it. If someone has to break a lock or crack a code to get to your invention, you’re probably good.
For example, say someone stole and published Google’s fiercely guarded secret search algorithm. Google could pursue legal action against that person, but they wouldn’t be able to unpublish the code.
In Tinder’s case, the company very likely knew that eventually, someone else would reverse engineer their swiping strategy. In their position, you’d probably want to file a patent and enjoy some exclusivity for a few decades.
If you still haven’t decided how you’d like to protect your hard work, don’t worry—you’re not alone. Intellectual property law is full of nuances, which is why we recommend talking to an experienced patent attorney first.
Bold Patents offers a free Discovery Call to discuss your options in business method patents and more. To schedule a consultation, connect with us online or call 866-460-3244.