Nielsen Fires Off Dual Lawsuits Against Panel Measurement Startups TVision And HyphaMetrics

Nielsen is developing an identity resolution solution to help advertisers measure audiences across platforms after third-party cookies and other mainstay identifiers go ta-ta.Nielsen took some kicks while it was down this year, delivered courtesy of rivals happy to capitalize on its MRC dis-accreditation and soured relationships with broadcasters.

But big companies can take a few kicks, and still throw a few punches of their own.

Nielsen is suing TVision and HyphaMetrics, two panel-based TV measurement startups, for alleged patent infringement. Both cases were filed in the District Court of Delaware on November 10.

Although the two suits are both patent suits, the details differ. But there are several common threads. For instance, both startups were dinged several times in Nielsen’s filings for things their co-founders told the press.

Nielsen’s suit against HyphaMetrics repeatedly cites an interview between founder and CEO Joanna Drews and Broadcasting & Cable Editor Jon Lafayette regarding the startup’s own patent, which Nielsen alleges infringes its prior patent. TVision gets a similar treatment regarding an AdExchanger interview with the company’s president and COO, Luke McGuinness, and a TechCrunch story that quotes co-founder and CRO Dan Schiffman.

The HyphaMetric suit

HyphaMetrics was founded in November of last year with $2 million in seed funding. It’s building an in-home audience panel of households that agree to share their smart TV viewership and demographic data.

Companies that want to incorporate panel data into their own measurement, but don’t want to or aren’t able to license Nielsen’s panel, can use HyphaMetrics as an alternative.

“I've heard them use the term; ‘A panel for the rest of us,’” VideoAmp Chief Measurability Officer Josh Chasin told AdExchanger referring to HyphaMetrics earlier this month in an article about VideoAmp’s panel data strategy and its partnerships with TVision and HyphaMetrics.

VideoAmp’s partnership with HyphaMetrics is cited in the suit as an example of alleged harm against Nielsen, which claims VideoAmp chose to partner with HyphaMetrics because it was impressed with its measurement tech stack. And in Nielsen’s view, Hypha’s measurement tech stack was developed using an infringing product.

Nielsen then points to VideoAmp’s subsequent deal with ViacomCBS to serve as an alternative to Nielsen – which VideoAmp inked after incorporating Hypha’s panel data – as another example of alleged harm.

The burden is on Nielsen to demonstrate harm, because it isn’t suing HyphaMetrics for creating an in-home audience panel alternative. Rather, Nielsen is alleging that Hypha is infringing its automated solution for determining whether a device or smart TV is on or off, thereby activating or turning off its in-home meter.

That may sound silly, but it is important for a panel operator to know when it can turn the device off, otherwise the meter is a constant electricity drain. Prior methods, such as activating by audio detection, were less exact, and the meter still had to be running to detect audio.

Nielsen also alleges its patent covers measurement edge cases. If there’s a power outage, for example, Nielsen can incorporate knowledge of that event into its data and know that any media signals from the home TV coming in during the disruption are faulty.

Since being stripped of its Media Rating Council accreditation for national and local TV measurement in late August after undercounting certain audiences during the pandemic, Nielsen has been on the defensive. It’s difficult not to view these lawsuits as fear of innovation in a changing market.

But a Nielsen spokesperson told AdExchanger that it's only protecting its rights.

“Nielsen has done the hard work and made the investments in continually innovating its panel measurement technology, making its representative panel data the basis of the currency on which the broadcast advertising industry trades,” the Nielsen spokesperson said. “We fully support and encourage innovation in media measurement and in panels, specifically. But we will not support businesses appropriating our intellectual property without authorization.”

TVision’s Turn

Nielsen’s suit against TVision claims infringement of two different patents, one for determining the makeup and audiences in a room using an in-device camera or detection method and the other for connecting that contextual data to ad exposures.

Nielsen says its patent covers the combined use of two-dimensional and three-dimensional data. Two-dimensional processing can often confuse a portrait of a person in the background, say, with a real person, while three-dimensional resolution covers only a small area.

The suit against TVision also alleges a systematic attempt to copy Nielsen’s marketing, including the use of similar sales language and stock images (of people sitting on a sofa watching TV).

But the core of Nielsen’s suit claims that TVision infringes its patent for monitoring home environments and that TVision’s home audience-monitoring technology is then connected to ad exposures via partnerships. These partnerships with Nielsen rivals, including Comscore, VideoAmp and Data Plus Math, which was acquired by LiveRamp in 2019, represent another alleged patent violation.

TVision co-founder and CEO Yan Liu told AdExchanger that “this suit is without merit.”

“We will vigorously defend ourselves,” Liu said. “But we will not lose sight of our mission to bring TV and CTV into the future with more transparent and accurate person-level engagement data.”

HyphaMetrics declined to comment.

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