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Justice Sotomayor, Perhaps “Speed Dating” Should Be Patent-Eligible After All

Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of 9780195381177The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights.  In the article below he looks at speed dating in a whole new light.

On Monday, November 9, 2009, the nine Justices of the US Supreme Court heard oral argument in the case of Bilski v. Kappos. This case, involving what many think to be the dull and arcane subject of patent law, can have a profound effect on the US economy, including potentially allocating research funds and investments and limiting what information our society will learn through the use of patents.

In the US, a patent can be granted to the first and true inventor(s) of a novel (new) and non-obvious invention. A patent provides a limited right to exclude others for a limited period of time, in exchange for telling the world how to practice the claimed invention. In other words, if the inventor teaches the rest of society what he or she knows, our government gives him or her an exclusive window of time during which to commercialize that invention. The assumption of the patent law is that granting a patent will foster innovation in two significant ways: (1) by encouraging investment in exchange for the limited monopoly rights, and (2) by providing disclosure of what might otherwise be maintained in secret and/or forgotten.

The issue the Supreme Court is deciding in Bilski is what types of inventions are “patent worthy” (as Elaine in Seinfeld might have phrased it), and what types of inventions do not even get considered for a patent. This debate is so important that apparently it is rumored that more amicus curiae briefs (including a submission prepared by me) were submitted to the Supreme Court than any other patent case in US history.

In an effort to divine where to draw the line on patent eligibility, the Justices posed a variety of hypothetical inventions to test patent worthiness using a proposed rule from the Appellate Court, to see whether that Court got the right answer. As an apparent example of an invention that should not be patent worthy, Justice Sotomayor, the newest member of the Court, is crediting with asking “why not speed dating?” [Court observers note that the transcript may be in error as to whether she said “speed dating” as reported in the media or “speaking”, but “speed dating” is a more interesting hypothetical].

In response to Justice Sotomayor, I say, “why not?” A brief review of Wikipedia on the subject, as it is at least in Wikipedia’s eyes deserving of its own web page, shows that “Speed dating is a formalized matchmaking process or dating system whose purpose is to encourage people to meet a large number of new people.” Certainly, this is a worthy goal for society to encourage.

“Speed dating” (two words with a space, in contrast to the single word which is a registered trademark of Speeddating Foundation., see US Trademark Registration No. 2,463,420) is a recent innovation. According to Wikipedia, “the first speed-dating event took place at Pete’s Café in Beverly Hills in late 1998” and “several commercial services began offering secular round-robin dating events” thereafter.

Many different techniques of speed dating have developed, with different themes and rules, all with the lofty goal of introducing two hopefully compatible people, who might not have otherwise met, in a time efficient manner. Each has its own process – a series of steps performed – many of which have proven profitable for their organizers and the individuals who pay to participate in these events.

It is not just Wikipedia that has found the topic worthy of investigation: the University of Pennsylvania and others have studied the events, and published their research findings. Further, pop culture has featured the concept in television shows like Sex in the City and in movies like Hitch.

Finally, perhaps Justice Sotomayor will be surprised to learn that the US Government has recognized that, at least when a speed date was tied to a computer in a manner conceived by Mordechai Teicher, the invention was entitled to patent protection in US Patent No. 7,305,398, entitled “Apparatus and Method for Managing Social Games”.

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  4. Jerry

    Actually here is the patent for online speed dating:


    The company bringing a product to market based on this patent is SpeedDate.com.

  5. step back

    “Speed dating” is indeed an interesting question to have been posed by our new Wise Latina member of the Court.

    Let’s say you are a 34 year old single female in desperate hunt for a life mate because your biological clock is running out.

    Let’s say that mathematicians Bilski and Ward had decided to focus their skills on devising a method for reducing risk of being matched to a Frog instead of a potential Prince Charming rather than to energy commodities.

    Let’s say their Bilski Claim 1 read as follows:

    An improved speed dating process comprising:

    (a) for each mate-seeking female, determining which counterpart potential suitor is more likely to be a frog for that female and which is more likely to be her Prince Charming;

    (b) ranking the determinations; and

    (c) initiating sequential speed dating interactions between the females and their counterpart potential suitors according to said rankings with most likely suitors being positioned at the front of the sequence.

    Now; will such a method “transform” the life of a 34 year old mate-seeking female? Will it be “useful” to her. Will it have concrete, tangible and possibly lifelong consequences?

    And will the Wise Latina conclude that such innovation should or should not be encouraged by yes/no making it “patent eligible” subject matter? Hmmm.

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  8. […] Speed Dating is not the only issue that our nine Justices of the Supreme Court raised on November 9, 2009 to determine what types of processes should be entitled to “patent worthiness.” Justice Scalia wanted to know why, if the patent laws were intended to cover broad processes, weren’t there any patents filed in the 1800s relating to training horses. […]

  9. Madison

    Speed dating as patent eligible… that’s pretty interesting. Wonder what they will decide?

    If you are interested, you can check out more dating events, including speed dating at http://www.mydatingadvicefree.com/dating-events/

  10. Student speed dating

    speed dating may not be a sound strategy for finding love.Guess this theory can definitely optimize the time and money.The principles and design process methods are really amazing.Hope every one can enjoy.

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