“KinectUs is clearly not an NPE by any reasonable definition of that term. In fact, one could argue that KinectUs is exactly the type of small business that Unified shouldn’t trouble itself with.”
In early October, social networking firm KinectUs LLC filed a lawsuit in the Western District of Texas alleging claims of patent infringement by Bumble Trading, LLC, the operator of the popular Bumble dating app. In the suit, KinectUs accused Bumble of infringing upon claims of six patents that protect systems and methods for connecting mobile device users via a collaboration system that enables users to connect with other users based on search parameters like common interests or location data. KinectUs’ infringement allegations focus on Bumble’s platform, which allows mobile device users to connect with others based on similar parameters.
KinectUs’ complaint also includes allegations that Bumble has willfully infringed each of the asserted patents. Specifically, the complaint notes that Bumble cited KinectUs’ U.S. Patent No. 9294428, Systems and Methods for Establishing Communications Between Mobile Devices, in petitions for inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) filed to challenge patents asserted against Bumble by dating app developer Match Group back in March 2018. Bumble referenced the ‘428 patent in IPR petitions and related expert declarations filed at the PTAB, as well as in preliminary invalidity contentions documentation filed in the district court litigation against Match Group.
Christopher Nordstrom, the lead inventor listed on the ‘428 patent, has been working since 2011 to develop his idea for a location-based social networking platform that connects people for activities while protecting users’ mobile privacy, according to the KinectUs complaint. In 2015, the KinectUs mobile platform was launched and the company continues to make the KinectUs app available through the Apple App Store. In discussing Bumble’s accused instrumentality covered by the ‘428 patent, the KinectUs complaint points out that the Bumble app matches profile data of registered users via a collaboration system that gives users the ability to upload profile data, including interests, and select other registered users who match based on profile data.
Unified Defines KinectUs as an NPE
While the actual analysis of whether Bumble’s user matching system infringes claims of the ‘428 patent would normally require at least a Markman hearing and some discovery, certain members of the U.S. patent community would prefer to harness the power of crowdsourcing to make this determination. IP litigation risk management firm Unified Patents is hosting a Patroll contest seeking prior art to invalidate the ‘428 patent owned by KinectUs. Unified has dubbed KinectUs a non-practicing entity (NPE) and the contest for invalidating the ‘428 patent offers $3,000 in reward money—an above average award level where Unified’s Patroll contests are concerned.
Unified is well known for keeping its subscriber base a closely guarded secret and it is impossible to draw the conclusion that Unified might be intervening on behalf of a dues-paying member in this particular case. But it does seem oddly altruistic to offer thousands of dollars in bounty to protect the interests of a company that was worth $3 billion as of November 2019 and had 5.03 million users in 2019, the second-largest user base among dating apps behind Tinder.
IPWatchdog reached out to Unified with questions but the company has chosen not to comment at this time.
KinectUs is clearly not an NPE by any reasonable definition of that term. In fact, one could argue that KinectUs is exactly the type of small business that Unified shouldn’t trouble itself with. KinectUs was advertising its patent-pending private browsing system for connecting people based on similar interests back in 2015, just a few months after Bumble spun off its dating platform from Tinder. At its launch, KinectUs was a small business employing a total of 12 staff members including engineers, developers and designers, and five years later it still manages to make its app platform available. How anyone can look at this fact pattern and somehow conclude that KinectUs is a non-practicing entity boggles the mind, unless truly every single patent plaintiff is automatically an NPE, which would be ridiculous.
Why Doesn’t KinectUs Deserve Its Day in Court?
Arguably, KinectUs offers a product that practices all of the elements of claim 1 of the ‘428 patent: the KinectUs app employs a method of establishing communication between mobile devices that involves registering mobile devices with a collaboration system available through the KinectUs app; it determines matches between mobile devices based on profile data; it displays lists of user identifications based on matching profile data to mobile devices registered with the KinectUs app; it provides mobile device users with options for selecting users from the lists of user identifications; and it generates notifications for registered users displaying the location, personal information and other attributes of matching users.
Similarly, Bumble offers matching services that arguably infringe upon claims of the ‘428 patent. As the KinectUs complaint explains, the accused instrumentality that allegedly infringes upon KinectUs’ patent claims includes the Bumble BFF and Bumble Bizz platforms, which focus more on connecting individuals based on personal interests and career goals rather than for dating. Bumble users can review multiple profiles for potential matches and “Boom” notifications are provided when registered users on different mobile devices mutually select each other from the displayed profiles. The Date, BFF and Bizz Modes give users First Move privileges to establish communication between mobile device users who match on the Bumble platform. If KinectUs thinks that Bumble’s accused instrumentality infringes on KinectUs’ own patent claims in a way that has caused KinectUs to lose business from its own app platform, then KinectUs deserves its day in court.
Perpetuating a Sloppy Narrative
Unfortunately, Unified Patents’ characterization of KinectUs as an NPE is exactly the kind of sloppy narrative building in which Unified has engaged during recent years. For a long time now, the duplicitous nature of Unified’s comments about the patent system have been on full display and easy for well-informed observers of the U.S. patent system to decipher. It’s already problematic for Unified to conflate NPEs with legitimate tech licensing operations. It’s even worse for Unified to wave thousands of dollars in the air while claiming to deter abusive tactics when even a cursory analysis arguably reveals that there is no such abuse in this particular situation.
To support its own cause, Unified spends money on flawed studies that attempt to paint the PTAB as a boon the U.S. economy, when it’s clear that the PTAB is anything but, especially for the small businesses and independent inventors who should be driving the U.S. economy. Now, with operating company KinectUs in its crosshairs, Unified has truly jumped the shark to the point that it’s difficult to conclude that it seeks to “improve patent quality and deter unsubstantiated or invalid patent assertions” for truly benevolent purposes. If former Federal Circuit Chief Judge Randall Rader is correct in saying that PTAB panels are “death squads killing property rights,” it’s not unreasonable to think of Unified as the type of government officer who kindly goes about his work leading unwitting American small businesses independent inventors en masse to their final resting place.
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