Why Nielsen Is Becoming A Patent Troll

“I was really surprised that nobody in the industry trades picked up the Bloomberg story about Nielsen’s second patent infringement lawsuit against HyphaMetrics,” a long-time TV industry research source of mine said to me yesterday, sending me a link to a new patent infringement suit Nielsen filed against rival startup HyphaMetrics. “Why do you think the trades are quiet on this?”

I looked at the headline of the Bloomberg article, “Nielsen Again Sues Rival HyphaMetrics for Patent Damages,” clicked through to scan the filing and get the gist, and replied, “I can only speak for myself. Embarrassingly, I was not aware.”

The truth is, I hadn’t written about -- or thought much about -- HyphaMetrics since they announced their launch a couple of years ago with some high-profile industry names as the startup team, and $2 million in venture capital.



Coincidentally, I had also just met with another source the previous day who mentioned that another long-time audience-measurement exec -- former Comscore Chief Revenue Officer Chris Wilson -- had joined Hypha as CEO, so I was already thinking about it when I heard the new news about the second Nielsen suit, and after confirming some of those details, reported on his move late Thursday.

It is interesting timing for Wilson, for Hypha, and for Nielsen, which has become increasingly litigious in the past couple of years, filing patent suits against Hypha, as well as another rival startup, TVision, in 2021, and now this new one against Hypha.

And without going into the details of the suits -- especially the new one, because I am neither a patent law expert nor one on the technologies being referenced -- some of the exhibits in Nielsen’s new suit refer to things like “convolutional neural networks,” “recurrent neural networks,” and “multilayer perceptrons” -- I figured I’d just ask my good source what he thought about the latest suit.

“I think [Nielsen is] just trying to distract these new emerging companies, stress them financially with the cost to defend this litigation. Also, I think they realize that Nielsen One isn’t going to help them win on the innovation front, so this is how they defend,” he offered, adding: “Not good for an industry that desperately needs innovation.”

Hearing that, and spending a little time reviewing some of its recent patent suits against rivals, and thinking about how much intellectual property Nielsen must have accrued over the past century -- that’s right Nielsen turns 100 this year – and thinking about how much new competition has already come its way, I began thinking that one of its new private equity-based ownership’s strategies for defending its market position might just be patent trolling.

Heck, it worked for Gemstar/TV Guide, TiVo and other television industry players that sued rivals and ultimately ended up generating so much from damages and subsequent licensing that I think it ended up dwarfing their bespoke business models.

But as my source noted, it’s not good for an industry in desperate need of innovation, so it will be interesting to follow this theory and see just how aggressive Nielsen becomes on the IP front. And by that, I don’t mean internet protocol. It already lost that battle to Comscore and others.

I mean intellectual properties.

As Nielsen begins celebrating its 100th birthday, I coincidentally also began talking to an author who was hired to write a book by the “Nielsen family” – and by that, I mean the actual family, the progeny of Arthur C. Nielsen, not a panel household.

Speaking with the author about the nearly half century that I’ve been covering the company, I learned a lot of things – some of which might be future columns – but also remembered some interesting things.

One of them was I remember being invited to Nielsen HQ in New York in the mid-1980s, just before the rollout of people meters – to get briefed on a top secret technology Nielsen had developed that could actually watch people watching TV. I don’t think Nielsen seriously thought about rolling it out, because even back then, privacy regulators probably would have freaked out, but Nielsen did conduct some control tests with households that agreed to be test subjects and they showed me some of the footage.

I say “some,” because the Nielsen execs who briefed me said some of it was not-ready-for-prime-time, and included people engaged in intimate acts in front of their TVs, even though they knew they were being watched and recorded by a giant TV research company. Go figure.

What I did see was footage of a different kind of Nielsen family living room with a mom ironing clothes and a toddler lying on the floor in front of the TV drawing in a coloring book. Neither of them were actually looking at the TV as the show they had on was playing.

I’m not sure how relevant that anecdote might be today, but it was the first time I began thinking about the kind of R&D Nielsen has and would be doing to stay on top of an increasingly evolving media marketplace.

And while I don’t imagine any upstart rivals trying to violate Nielsen’s whoopee cushion patent (if it actually has one of those), I do think a big part of the next iteration of the advertising currency wars is going to involve a certain amount of patent litigation, and I imagine that’s going to slow down some of the TV and ad industry’s impetus to accelerate innovation at a rapid fire digital platform pace.

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