• by Joe Mandese , October 12, 2006

Two unrelated patent developments on Wednesday could have a profound influence on how media audiences are measured, and on how advertisers pay for those audiences. TV ratings start-up erinMedia received a favorable ruling from the U.S. Patent and Trademark Office allowing two of its patent claims related to its system for measuring TV audiences via digital set-top devices, and Arbitron filed suit against The Media Audit and IPSOS, which have begun rolling out a radio audience measurement system utilizing a portable, "smart phone" technology that Arbitron claims infringes on its portable people meter technology.

The moves were the latest in a series of recent intellectual property maneuvers by big media research companies either hoping to get a leg up on the competition, or to block someone from deploying the next generation of media audience measurement.

erinMedia founder Frank Maggio hailed the patents as a public affirmation of erinMedia's plans for measuring TV audiences via a census of digital set-top data. The patents, which cover erinMedia's methods for deriving privacy compliant ratings and behavioral information from set-top boxes, had been written off as unenforceable by Nielsen Media Research executives.

erinMedia currently has a federal antitrust suit against Nielsen on the grounds that its trade practices have created a barrier for erinMedia's entry into the marketplace. However, TNS Research has recently begun striking deals with cable and satellite TV operators to begin aggregating their set-top data into census-based TV ratings. While most of those deals initially are for internal usage, TNS is hopeful that it will be able to "commercialize" those ratings services soon.

Meanwhile, the timing of Arbitron's patent infringement suit against The Media Audit and IPSOS is interesting, because many industry observers believe that service is nothing more than a stalking horse. The field test of the new smart phone system was initiated at the behest of a task force organized by radio giant Clear Channel Communications, which has been loath to renew a new long-term deal with Arbitron based on its portable people meter system without any competition in the market. However, about a third of radio broadcasters--including the industry's No. 2 player, CBS Radio--have signed up with Arbitron, and many industry executives expect Clear Channel to follow suit soon.

However, it could be that Arbitron is simply seeking to enforce its patent for portable metering as a means of staving off other potential competitors, including Nielsen.

Nielsen recently passed on an option to develop a joint venture that would simultaneously measure TV and radio audiences utilizing Arbitron's portable meters, although its parent company VNU continues to be involved in another joint venture with Arbitron that does utilize those meters--Project Apollo.

Nielsen has also recently embarked on its own portable metering initiative. In a notice sent to clients on Monday, Nielsen CEO Susan Whiting said the TV ratings firm has completed an "internal pre-test" of the cell phone-based "Go Meter" based on a sample of 30 Nielsen employees.

"We are analyzing the data to confirm that the 'Go Meter' technology and concept are workable, and expect to have final results later in October," she said. Whiting said Nielsen's methodological research team has also been conducting consumer focus group studies of the Go Meters, and has begun refining its design based on that input.

It was unclear at press time whether Arbitron's patent infringement suit extended beyond The Media Audit and IPSOS, but Arbitron has sued Nielsen for patent infringements related to its portable metering system in the past--and in one recent case, has lost.

In December, a judge for The European Patent Trade Organization in Munich ruled in favor of Nielsen in a patent suit challenging Nielsen's A/P meter, the heart of Nielsen's new digital metering initiative. A/P, which stands for active/passive metering, utilizes a combination of active and passive audio and video codes, which Nielsen claims make it a foolproof system for measuring digital TV signals. Nielsen began rolling the system out earlier this year as a means of measuring digital television, including digital video recorders, and video-on-demand.