Nielsen and comScore Row Over Patents

Nielsen and comScore Row Over Patents

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Nielsen, who was previously sued by and then paid $15 million to Jupiter Media Metrix for patents regarding  the collection, analysis and reporting of information concerning computer activity is now suing comScore for pretty much the same thing. Uh oh, someone is angry over someone else’s success… or are they? There was obviously something to the Jupiter case against Nielsen who decided to just buy the patents for a paltry sum. Now the question is, did comScore somehow infringe those same patents that are now held by their major rival, Nielsen? More importantly, can Nielsen prove it and can they prove comScore did it willingly?

Nielsen alleges that the comScore range of products infringe upon several patents in fact, five of them to be precise. Now this isn’t the first time that Nielsen has decided to litigate in regards to patents, they did so back in 2005 against SageMetrics, Sane Solutions and Visual Sciences involving United States Patent Nos. 5,675,510; 5,796,952; 6,108,637; 6,115,680; 6,138,155; 6,643,696 and 6,763,386. They also filed against Omniture and Coremetrics in the past.

United States Patent No. 5,675,510

The subject system measures and reports the use of a personal computer by a user through a log file. The log file includes entries corresponding to predetermined events and can report on the applications used and communication functions engaged in by the user. The log files from one or more computers may be assembled and analyzed in order to ascertain computer use habits for computer software, computer hardware and computer communications. The system may also be used to predict computer use trends and to represent computer use history.

Wow, now that is a pretty broad patent which could include just about any kind of feedback and log system. I imagine that the majority of software developers would be paying to use that considering how extraordinarily broad it is.

Here are some further details:

  • It is an object of the invention to facilitate fie collection of reliable information regarding the use of personal computer software.
  • It is a further object of the invention to facilitate the collection of reliable multi-media viewing statistics of commercial on-line services as well as access to the “information superhighway,” including the use of the Internet’s World Wide Web.
  • It is a further object of the invention to facilitate the establishment of a panel of personal computer using households in order to develop useful reports for a number of different industries including, without limitation, software manufacturers, commercial on-line service providers, computer hardware manufacturers, and on-line marketers.

Again, still extraordinarily broad. So here’s an image that was attached to the patent. It looks to me like, well, just about any software package on the planet, except that they state ‘panelist’ which clearly aims the patent and online data usage and user activity gathering.

As with all patent infringement cases, comScore will have to prove they are not at fault by either the solution being obvious and independently developed (which it clearly could have been in this case) or Equitable estoppel which has three parts*:

First, the alleged infringer must show that the patentee, through misleading conduct, led the alleged infringer to reasonably infer that the patentee did not intend to enforce its patent against the infringer. Second, the alleged infringer must demonstrate reliance on that conduct. Finally, the alleged infringer must show that it will be materially prejudiced, that is, harmed or disadvantaged, if the patentee is permitted to proceed with an infringement claim against the alleged infringer.

Nielsen has a pretty hefty task as well as they must:

  • prove that each and every limitation of the asserted claim is present in the accused product, either literally or equivalently.*

Failing to prove even one simple piece of the puzzle could see it all dissolve and they could then lose the case.

Nielsen is stating that this case is ‘exceptional’ meaning they will also attempt to sue for lawyer fees which sounds like they believe that they have a strong case and that comScore did knowingly flaunt their patents. Considering the big money involved in market research by these two it promises to be a big deal one way or another. If comScore is found to note be infringing they too might then ask for reparations and lawyer fees as it could simply be seen as a non-competition move by Nielsen. If comScore is found to be infringing, Nielsen could ask for some fairly large sums. Plus, if it is shown that comScore knowingly infringed upon the copyright with impunity, Nielsen could ask for three times the damages*. That could potentially break the bank so to speak.

Now, I’m no patent lawyer so there are bound to be some mistakes in my analysis, don’t sue me over it .

* Source: Patents and Property


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