I wanted to create a free web application, but found a possible patent infringement

Question

I am a web application developer and was looking to start an open sourced, free-to-use project that involves crowdsourced media recommendation functionality, then came across this patent:

https://patents.google.com/patent/US20160034454A1 (14/879469)

Now I've been doing some research on patents since this discovery. I learned that this one is not active yet, but I could potentially get sued if and when their patent is issued.

I'm a bit annoyed as I feel these kinds of patents are far too broad. If you look at the other patents they filed, they're essentially trying to patent relatively simple software features. And if the patent gets issued, no one will be able use these simple features in any of their software.

So I tried looking for prior art and came across this:

https://link.springer.com/chapter/10.1007/978-3-319-04117-9_32

Would this publication be considered as prior art and potentially challenge the patent? What about any web platform that involves crowdsourced recommendations? One could argue that sites like Reddit are essentially crowdsourcing recommended content to other users.

Regardless, would you recommend me to continue on with the project or give it a pass due to the pending patent? Is it likely that this patent gets approved, and if so, would it even be realistically enforceable?

Thank you.

EDIT: Found an active patent by the same "inventor" which is even broader than the pending patent.. https://patents.google.com/patent/US8825574B2

Answer 1

You are correct that you could potentially get sued. However, this is current only an application. It may or many not get granted as a patent. Claims in applications are frequently broader than what eventually gets allowed. To infringe on a patent you need to implement each and every aspect of at least one claim. There are three independent claims in this patent. Here is the first one.

1. A method of generating media pair similarity ratings, comprising:

   presenting a user with a first media item;

   querying the user regarding one or more additional media items that are most similar to the first media item;

   receiving input from the user indicating the one or more additional media items that are most similar to the first media item; and

   setting a pair similarity rating for the first media item and at least one of the one or more additional media items based at least in part on the input indicating the one or more additional media items most similar to the first media item.

I agree this seems overly broad. It is very likely this claim and others may be narrowed if the application manages to get granted. That said, you don't know what those claims will be yet. In addition, this patent application has a complex history. From the application:

This application is a continuation-in-part of U.S. patent application Ser. No. 14/483,452, filed on Sep. 11, 2014, which claims the benefit of U.S. Provisional Application No. 61/876,653, filed on Sep. 11, 2013. This application is also a continuation-in-part of U.S. patent application Ser. No. 14/832,279, filed on Aug. 21, 2015, which is a continuation-in-part of U.S. patent application Ser. No. 13/792,729, filed on Mar. 11, 2013, which is a continuation-in-part of U.S. patent application Ser. No. 12/892,274, now U.S. Pat. No. 8,401,983, filed on Sep. 28, 2010. The present application is further continuation-in-part of U.S. patent application Ser. No. 12/892,320, now U.S. Pat. No. 8,825,574, filed on Sep. 28, 2010. This application is further continuation-in-part of U.S. patent application Ser. No. 12/903,830, filed on Oct. 13, 2010, and which claims the priority of U.S. Provisional Application No. 61/251,191, filed on Oct. 13, 2009. All of the U.S. priority applications are herein incorporated by reference.

At this point, your best bet is to discuss this issue with a competent patent attorney with whom you can describe your implementation and get a freedom-to-operate opinion. You can't rely on opinions from the internet especially as we don't know your implementation. I should also warn you that this application may not be the only piece of prior art you need to be concerned with. Please understand I am not an attorney and this is not legal advice.