Home Analytics Patent Fight: comScore May Win The Battle, Yet Lose The War

Patent Fight: comScore May Win The Battle, Yet Lose The War

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Analytics is among the most contested areas in digital advertising, with ad agencies, marketers, established vendors, and startups all falling over each other to provide the truest form of ad effectiveness. The landscape is dotted with providers big and small that lay claim to proprietary measurement methodologies.

Many of the services are difficult for clients to assess, and even the competing metrics providers have trouble differentiating themselves. Sometimes, the clearest arbiter of “best in class” is someone who holds the patents. And that brings us to the news of lawsuits filed in June and July by comScore, who claimed that three smaller competitors — DoubleVerify, AdSafe Media and Moat— infringed on patents.

“It is unclear why comScore would take this course of action to compete in the ad viewability market, especially as the patents they are asserting relate to 1990’s vintage technology that is rapidly becoming outdated,” AdSafe CEO Scott Knoll told AdExchanger, when asked for reaction to the suit.  “We feel strongly that our proprietary technology is not covered by these old patents.”

Knoll argues comScore’s lawsuits may represent an attempt to monetize the old patents that they acquired  through past legal settlements before they become completely obsolete. “In any case, we do not believe this technology is relevant to what we are doing and thus we do not believe we will need to pay any royalties,” he added.

Knoll also noted AdSafe has had pending patents of its own around viewabilty, as well as other areas related to reporting, targeting and real time bidding. “We protect all of our intellectual property and expect that our own pending patents will be much more relevant to the industry in the coming period,” Knoll said. “Having said this, we have a defensive patent strategy allowing our innovation to speak for itself in the marketplace rather than in the courts.”

Nevertheless, it’s safe to say that there will indeed be much more legal activity around analytics as the space matures and startups continue to look for ways to provide their own niche.

In conversations with several online ad industry executives, there was support for the general notion of defending one’s intellectual property. But there was a lot of doubt that it would play out well for comScore and some degree of dubiousness about whether comScore was attempting to simply protect its intelligence as opposed to intimidating upstarts.

“I can only imagine that comScore is fighting because they feel threatened in some way,” said the head of one analytics provider not involved in the suit. “They may win the battle but lose the war. If comScore was serious then they really would have to also sue every ad server on the planet. Whether the defendants settle or fight, this will be very expensive and de-focusing for those small companies.”

Media buying veteran Tim Hanlon, CEO at emerging media consultancy The Vertere Group, sees parallels with last year’s Nielsen lawsuit against comScore, which ended in a settlement between the two  (original suit here; settlement press release here). The patents that were fought over in that suit now appear to be the subject of comScore’s current one, though Nielsen has not registered any complaint on its end, at least not yet.

“Not unlike Nielsen in TV ratings, comScore is a de facto measurement currency that enjoys significant, if not overwhelmingly dominant share in the marketplace,” Hanlon said. “When legitimate outside challengers emerge and potentially threaten the status quo, incumbents tend to do all they can to stop or at least slow the encroachment – including strategic legal action, if necessary. These firms may enjoy a bit of flattery by being named in this suit – clearly comScore is rattled by their collective inroads in the market.”

Philipp Pieper, CEO of data provider Proximic, echoed Hanlon’s view. “It’s very interesting to see such a large organization like ComScore sue significantly smaller players,” Pieper said. “Is it the new normal? Furthermore, who wins at the end of this? Pixel-tracking and measurement are essential part of the entire industry. Is Comscore consequently now coming after everyone? Generally, I believe innovators should get credit for the innovation they’ve brought to market, but time is better spent creating products that create real value and that makes the ad ecosystem healthier. There’s work to be done.”

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