Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

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0 Exhibit B 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE In re Application of: Sean Rad et al. Serial No.: 14/059,192 Filing Date: October 21, 2013 Group Art Unit: 2164 Examiner: Yuk Ting Choi Confirmation No.: 1044 Title: MATCHING PROCESS SYSTEM AND METHOD Commissioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450 RESPONSE ACCOMPANYING REQUEST FOR CONTINUED EXAMINATION Applicant responded to the final Office Action dated August 29, 2016 ("Office Action") on October 31, 2016 ("Initial Response"). Applicant subsequently filed a Supplemental Response to the Final Office Action ("Supplemental Response") on November 9, 2016. In response to the Advisory Action dated November 9, 2016, Applicants respectfully request that the Examiner consider this Response in further view of the Initial and Supplemental Responses. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 2 In the Claims: For the convenience of the Examiner, all pending claims are set forth below, whether or not an amendment is made. Please amend the claims as follows: 1.-22. (Canceled) 23. (Previously Presented) A computer implemented method of profile matching, comprising: electronically receiving a first request for matching, the first request electronically submitted by a first user using a first electronic device; determining a set of potential matches for the first user in response to receiving the first request; causing the display of a graphical representation of a first potential match of the set of potential matches to the first user on a graphical user interface of the first electronic device, the first potential match corresponding to a second user; determining that the first user expressed a positive preference indication regarding the first potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface; in response to determining that the first user expressed the positive preference indication regarding the first potential match, automatically causing the graphical user interface to display a graphical representation of a second potential match of the set of potential matches instead of the graphical representation of the first potential match; determining that the second user has expressed a positive preference indication regarding the first user after determining that the first user expressed the positive preference indication regarding the first potential match; determining to enable initial communication between the first user and the second user in response to determining that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user; 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059, 192 3 in response to determining to enable initial communication between the first user and the second user, causing the graphical user interface to display to the first user the graphical representation of the first potential match; determining that the first user expressed a negative preference indication regarding a third potential match of the set of potential matches at least by determining that the first user performed a second swiping gesture associated with a graphical representation of the third potential match on the graphical user interface, the second swiping gesture different than the first swiping gesture, the third potential match corresponding to a third user; preventing communication between the first user and the third user after determining that the first user has expressed the negative preference indication regarding the third user; determining that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user; and preventing communication between the first user and the fourth user after determining that the fourth user has expressed a negative preference indication regarding the first user. 24. (Canceled) 25. (Previously Presented) The method of Claim 23, further comprising: in response to determining that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user, causing the display of a graphical notification, on the graphical user interface of the first electronic device, that a match exists between the first user and the second user, the graphical notification comprising a user interface control enabling a text area to be presented to the first user. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 4 26. (Previously Presented) The method of Claim 23, wherein the set of potential matches for the first user comprises one or more potential matches that are each associated with a geographic location within a threshold distance of a geographic location associated with the first user, the threshold distance being a stored value. 27. (Canceled) 28. (Canceled) 29. (Canceled) 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 5 30. (Previously Presented) A non-transitory computer-readable medium comprising instructions that, when executed by a processor, are configured to: electronically receive a first request for matching, the first request electronically submitted by a first user using a first electronic device; determine a set of potential matches for the first user in response to receiving the first request; cause the display of a graphical representation of a first potential match of the set of potential matches to the first user on a graphical user interface of the first electronic device, the first potential match corresponding to a second user; determine that the first user expressed a positive preference indication regarding the first potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface; in response to the determination that the first user expressed the positive preference indication regarding the first potential match, automatically cause the graphical user interface to display a graphical representation of a second potential match of the set of potential matches instead of the graphical representation of the first potential match; determine that the second user has expressed a positive preference indication regarding the first user after determining that the first user expressed the positive preference indication regarding the first potential match; determine to enable initial communication between the first user and the second user in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user; in response to the determination to enable initial communication between the first user and the second user, cause the graphical user interface to display to the first user the graphical representation of the first potential match; determine that the first user expressed a negative preference indication regarding a third potential match of the set of potential matches at least by determining that the first user performed a second swiping gesture associated with a graphical representation of the third 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 6 potential match on the graphical user interface, the second swiping gesture different than the first swiping gesture, the third potential match corresponding to a third user; prevent communication between the first user and the third user after determining that the first user has expressed the negative preference indication regarding the third user; determine that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user; and prevent communication between the first user and the fourth user after determining that the fourth user has expressed a negative preference indication regarding the first user. 31. (Canceled) 32. (Previously Presented) The medium of Claim 30, further comprising instructions configured to, in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user, cause the display of a graphical notification, on the graphical user interface of the first electronic device, that a match exists between the first user and the second user, the graphical notification comprising a user interface control enabling a text area to be presented to the first user. 33. (Previously Presented) The medium of Claim 30, wherein the set of potential matches for the first user comprises one or more potential matches that are each associated with a geographic location within a threshold distance of a geographic location associated with the first user, the threshold distance being a stored value. 34. (Canceled) 35. (Canceled) 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 7 36. (Canceled) 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 8 37. (Previously Presented) A system for profile matching, comprising: an interface operable to: electronically receive a first request for matching, the first request electronically submitted by a first user using a first electronic device; and a processor coupled to the interface and operable to: determine a set of potential matches for the first user in response to receiving the first request; cause the interface to display a graphical representation of a first potential match of the set of potential matches to the first user on a graphical user interface of the first electronic device, the first potential match corresponding to a second user; determine that the interface has received a positive preference indication from the first user regarding the first potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface; automatically cause the interface to remove the presentation of the first potential match from the graphical user interface in response to detecting the gesture and cause the interface to present, on the graphical user interface, a second potential match of the set of potential matches to the first user; determine that the second user has expressed a positive preference indication regarding the first user after determining that the first user expressed the positive preference indication regarding the first potential match; and determine to enable initial communication between the first user and the second user in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user; in response to the determination to enable initial communication between the first user and the second user, cause the graphical user interface to display to the first user the graphical representation of the first potential match; determine that the first user expressed a negative preference indication regarding a third potential match of the set of potential matches at least by determining that the first user performed a second swiping gesture associated with a graphical representation of the third 32793895 0 ATTORNEY DOCKET NO.: PA TENT APPLICATION 083523.0118 14/059,192 9 potential match on the graphical user interface, the second swiping gesture different than the first swiping gesture, the third potential match corresponding to a third user; prevent communication between the first user and the third user after determining that the first user has expressed the negative preference indication regarding the third user; determine that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user; and prevent communication between the first user and the fourth user after determining that the fourth user has expressed a negative preference indication regarding the first user. 38. (Canceled) 39. (Previously Presented) The system of Claim 37, the processor further operable to, in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user, cause the display of a graphical notification, on the graphical user interface of the first electronic device, that a match exists between the first user and the second user, the graphical notification comprising a user interface control enabling a text area to be presented to the first user. 40. (Previously Presented) The system of Claim 37, wherein the set of potential matches for the first user comprises one or more potential matches that are each associated with a geographic location within a threshold distance of a geographic location associated with the first user, the threshold distance being a stored value. 41. (Canceled) 42. (Canceled) 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 10 43. (Canceled) 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 11 REMARKS In the Initial Response, Applicants traversed the Section 103 rejections of the pending claims by, in part, discussing objective evidence demonstrating that the claims are not obvious. Initial Response at 13-16. In particular, Applicants provided evidence that embodiments of the claims were commercially successful and copied by others. Id. In the Supplemental Response, Applicants also provided evidence from an article in The Wall Street Journal that also demonstrated that the claims were commercially successful and copied by others. Applicants respectfully requests that the Examiner consider the new evidence discussed below that demonstrates that the technology of the application was invented prior to the primary reference used by the Examiner. The arguments used in the Initial Response and the Supplemental Response are included here as well for convenience. 35 U.S.C. § 103 Rejections The Examiner rejects Claims 23, 25, 26, 30, 32, 33, 35, 37, 39, and 40 under 35 U.S.C. § 103 as allegedly being unpatentable over U.S. Patent Publication No. 2014/0040368 Al by Janssens ("Janssens") and in view of U.S. Patent Publication No. 2008/0196094 Al by Benschop et al. ("Bense hop"). Applicant respectfully traverses these rejections because (1) the Office Action has not established a prima facie case of obviousness; and (2) objective evidence demonstrates that the claims are not obvious. Tlte claims predate Janssens The claimed technology was invented prior to August 6, 2012, which is the priority date of Janssens. As evidence, Applicant submits the declaration of inventor Jonathan Badeen and its accompanying exhibits. Thus, pursuant to MPEP § 715, the Section 103 rejection using Janssens is overcome. Applicant respectfully requests reconsideration and allowance of all pending claims. Tlte claims are not anticipated nor rendered obvious in view of Janssens. In addition, Applicant disagrees that Janssens discloses the following limitations of the independent claims: • determining to enable initial communication between the first user and the second user in response to determining that both the first user has expressed the positive 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 12 preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user (Claim 23); • determine to enable initial communication between the first user and the second user in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user (Claim 30); and • determine to enable initial communication between the first user and the second user in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user (Claim 37). Not only that, Janssens teaches away from these limitations. This is significant because "[a] Prima Facie case of obviousness may also be rebutted by showing that the art, in any material respect, teaches away from the claimed invention." Jn re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997); see also MPEP 2 l 45(X.D.2). Janssens discloses that users can communicate with each other prior to the "linking" cited by the Examiner. See, e.g., Janssens at iI 95. Paragraphs 52-53 of Janssens suggests that users can freely communicate unless they are prevented upon request by a user. This teaches away from the claimed manner of enabling initial communication as users are prevented from communicating until the conditions specified in the claim are met. See also id. at iI 5. Paragraph 56 of Janssens merely discloses users setting preferences but otherwise allowing open communication between users of the system. Paragraph 178 of Janssens addresses a "speed dating" situation where users who have expressed no preference for other users are forced to chat with another for a specified period of time. This again teaches away from the claimed manner of enabling initial communication which require a particular set of factors to allow for communication between users. Thus, not only has the Examiner failed to identify one passage of Janssens that explicitly teaches enabling initial communication in the manner claimed, numerous passages in Janssens teach the opposite and allow users to communicate before the "linking" feature discussed by the Examiner. The claims are not obvious in view of Janssens and Bensch op. In the alternative, the Office Action rejects the independent claims as obvious by attempting to remedy the deficiencies of Janssens noted above with po1iions of Benschop. Office Action at 8. But this rejection suffers from two legal deficiencies. First, obviousness 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059, 192 13 rejections are inappropriate when a reference teaches away from the claims. In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997); see also MPEP 2145(X)(D)(2). Second, obviousness rejections are improper where a proposed modification would render the prior art being modified unsatisfactory for its intended purpose. MPEP 2143.0l(V). Janssens teaches away from being combined with Benschop. The cited portions of Benschop are directed to an e-mail system wherein users can only e-mail each other if they are in each other's address books. Benschop atii 60. Benschop seeks to allow messaging between users that already know each other. Id at ii 58. But, as detailed above, Janssens teaches away from enabling initial communication in the manner claimed because Janssens is directed to facilitating communication between users who do not know each other. Incorporating the teachings of Benschop would frustrate the purpose of Janssens. As explained above, the cited portions Benschop is directed to an e-mail system that reduces spam by allowing messaging between users that already know each other. See Benschop at ilif 57 & 60. But Janssens teaches an electronic dating platform where users do not know each other and are using the platform to get acquainted. Thus, combining Benschop and Janssens in the manner suggested by the Office Action would lead to a system inoperable for its intended purpose. Objective evidence demonstrates that the claims are not obvious. The law establishes that secondary considerations based on objective evidence can rebut that the claims are not obvious. MPEP 2145. One such consideration is the commercial success of an embodiment of the claims; another is whether the claimed invention was copied by others. Id A third consideration is whether the claimed invention has received industry praise. Id; Vulcan Engineering Co. v. Fata Aluminum Inc., 278 F.3d 1366, 1373 (Fed. Cir. 2002) ("Appreciation by contemporaries skilled in the field of the invention is a useful indicator of whether the invention would have been obvious"). The claimed inventions of the present application have been commercially successful, copied by others, and have received industry praise as the objective evidence discussed below demonstrates. Therefore, the obviousness rejection of the claims should be withdrawn. Multiple articles from different publications attest to the overwhelming success of Applicant's system that embodies the independent claims and specifically cite the claimed 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 14 manner of enabling initial communication as the reason for that success. One publication attributes the commercial success to: "the double opt-in": You can only message someone after you've both signaled that you'd be down to talk to the other. Due to this feature, Tinder is succeeding with women turned off by traditional dating sites. Appendix I at 2. Another publication notes Applicant's success in accruing "millions and millions of users" in less than a year noting "the idea of the double opt-in-some establishment of mutual interest that precedes interaction." Appendix 2 at 2-3. Yet another publication highlights that Applicant's system has "over 1.5 billion swipes and 26 million matches per day" and attributed the "success" to the "double opt-in connections[.]" Appendix 3 at 2. In an article titled "How Tinder Solved Online Dating for Women," yet another publication describes the Applicant's system in terms of the claimed functionality after noting its success with users: You're served a succession of photos of people who meet your age, gender, and location criteria. You swipe right if you want to meet someone, and swipe left if you don't. If you both swipe right, you can message each other. Appendix 4 at 1. A fifth publication concurs, noting both the success of Applicant's system and the claimed technology: It's the fastest-growing dating application in America, and the flirting device is becoming ubiquitous in Australia among young urban singles. Tinder - more than any other app or website - has managed to suck the stigma out of meeting online. The smartphone app works a little like speed dating, but it's even more rapid-fire. Profiles, which consist of five photos taken from users' Facebook pages and a short description, are stacked on the app like a deck of cards. If someone likes what they see, they swipe right to indicate they're interested. If they don't, they swipe left. If two people swipe right on each other, they're a "match" and can start messaging inside the app. This way, the potential for unwanted attention is eliminated. Appendix 5 at 1. Finally, a sixth publication provides the same attestation succinctly: Downloaded by more than 100 million people, Tinder is responsible for some 1.5 million in-person dates each week, according to its creators. It's helped to normalize "meeting online." Tinder did this with an ingeniously simple swipe "right for like"/ "swipe left for dislike" vetting process, connecting people only when there is mutual interest. Its soaring popularity has helped revolutionize modern dating, shifting us from finding love via chance to finding it via algorithm. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 15 Appendix 6 at 3. Thus, overwhelming objective evidence demonstrates the commercial success of Applicant's inventions. Further, multiple competitors arising after the Applicant's system incorporated the claimed features, and publications have attested to this type of copying. A product called "The League" "[c]alls itself the 'Tinder for elites[.]"' Appendix 8 at 1. "Like Tinder and Hinge, you can swipe right to indicate you're interested in someone or swipe left if you'd like to pass." Id. at 5. And like Applicant's system, you can communicate once you match. Id at 13. These same features are touted by "The League" itself. Appendix 7 at 1. "Hinge" is another application that "looks very much like Tinder" (Appendix 9 at 1) and "borrows most of its interface from Tinder" (Appendix 1 at 3). This application also works like Applicant's system: At first glance, they [Tinder and Hinge] look quite similar. Both give you one potential mate at a time that you can swipe right to approve or swipe left to dismiss. If two people approve each other, they're allowed to chat within Hinge. Appendix 10 at 1. Indeed, another article notes that Applicant's interface is "widely copied[.]" Appendix 3 at 2. Thus, objective evidence demonstrates Applicant's claimed inventions have been copied by others. In addition, multiple publications have praised Applicant's system based on the technology claimed in the present application. One publication stated: Tinder ... found another way to cut down on the creep factor, through what its founders call "the double opt-in": You can only message someone after you've both signaled that you'd be down to talk to the other. Due to this feature, Tinder is succeeding with women turned off by traditional dating sites. Appendix 1 at 2. Another publication claimed that Tinder has "cracked the code" and has won the "race" of applications in its field. Appendix 2 at 1; see id. at 2-3 (identifying the claimed features as reasons for the system's success). In an article titled "How Tinder Solved Online Dating for Women," yet another publication praised Applicant's system in terms of the claimed functionality: You're served a succession of photos of people who meet your age, gender, and location criteria. You swipe right if you want to meet someone, and swipe left if you don't. If you both swipe right, you can message each other. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 16 Appendix 4 at I. A fifth publication concurs, praising the Applicant's system and the claimed technology: Tinder - more than any other app or website - has managed to suck the stigma out of meeting online. The smartphone app works a little like speed dating, but it's even more rapid-fire. Profiles, which consist of five photos taken from users' Facebook pages and a short description, are stacked on the app like a deck of cards. If someone likes what they see, they swipe right to indicate they're interested. If they don't, they swipe left. If two people swipe right on each other, they're a "match" and can start messaging inside the app. This way, the potential for unwanted attention is eliminated. Appendix 5 at 1. A sixth publication praises Applicant's system as "ingenious": It's helped to normalize "meeting online." Tinder did this with an ingeniously simple swipe "right for like"/ "swipe left for dislike" vetting process, connecting people only when there is mutual interest. Its soaring popularity has helped revolutionize modern dating, shifting us from finding love via chance to finding it via algorithm. Appendix 6 at 3. Thus, overwhelming objective evidence demonstrates industry praise of Applicant's inventions. On November 3, 2016, The Wall Street Journal published an article that discusses embodiments of Applicant's claims. The Wall Street Journal stated: For the millennial generation, the lingo of "swiping" is painfully obvious. But it didn't even exist until 2013, when the Tinder app introduced the finger-flicking gesture into its interface for choosing a date. When looking at the profile photo of a potential match, a dismissive swipe to the left moves on to the next prospect, while a swipe to the right indicates interest. And if the right-swipe is mutual, dating rituals can commence via instant messaging. Tinder's massive success, with users making more than a billion swipes a day, has led to an array of other apps adopting the swipe-to-like approach. "Swiping" has even permeated the language, with "swipe left" used as a general metaphor for rejection and "swipe right" for acceptance and openness. Appendix 11 at 2. Notably, the article attributes the commercial success and popularity of Applicant's product to the claimed features at issue in this patent application. In addition, the article mentions that others have copied the claimed features embodied in Applicant's product. This new article is in accord with the ten other references submitted by Applicant in the Initial Response; this overwhelming, objective evidence demonstrates that the claims are not obvious. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 17 For at least these reasons, Claims 23, 30, and 37, as well as each of their respective dependent claims are in condition for allowance. Favorable action is requested. 32793895 0 ATTORNEY DOCKET NO.: PATENT APPLICATION 083523.0118 14/059,192 18 CONCLUSION Applicant has made an earnest attempt to place this case in condition for allowance. For the foregoing reasons and for other reasons clearly apparent, Applicant respectfully request reconsideration and full allowance of all pending claims. If the Examiner feels that a telephone conference would advance prosecution of this application in any manner, the Examiner is invited to contact Chad Walters, Attorney for Applicant, at the Examiner's convenience at (214) 953-6511. As indicated on the accompanying RCE Transmittal form, the Commissioner is authorized to charge the amounts of $1, 700.00 (for the RCE fee) and $1,400.00 (for the three- month extension-of-time fee) to Deposit Account No. 02-0384 of BAKER BOTTS L.L.P. Although Applicants believe no other fees are due, the Commissioner is authorized to charge any necessary additional fees and credit any overpayments to Deposit Account No. 02-0384 of BAKER BOTTS L.L.P. Respectfully submitted, BAKER BOTTS L.L.P. Attorneys for Applicant Roshan S. Mansinghani Reg. No. 62,429 (214) 953-6737 Date: January 31, 2017 Correspondence Address: Customer No: 05073 32793895 0 APPENDIX 1