Nielsen Using Patent Monopolies To Act Like A Monopolist
from the seems-a-bit-questionable dept
For many years, we’ve highlighted how patents are monopolies and they provide monopolistic power. Indeed, the founders of the US recognized this. James Madison was quite skeptical:
“But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.”
Jefferson was similarly dubious of the need for patents:
… generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
Eventually, Jefferson was convinced to support such a system — and even reluctantly ran it for a while — but he did so with great concern about how these “monopolies” could hinder actual innovation.
Fast forward a couple centuries, and let’s look at the case of Nielsen. You know, the company that “measures” freaking everything. Once synonymous with television ratings and “Nielsen homes,” it has expanded into other entertainment measuring markets over time — and has certainly had something resembling a monopoly during much of that period — and it has often used patents to retain that monopoly. And this goes back a very, very long time.
In the 1940s, Nielsen worried about a competitor taking away its “exclusive” market and used patents to kill it off:
The challenge to Nielsen’s meter monopoly was too real to be taken lightly. Charles Wolcott, a top executive of A.C. Nielsen wrote to Mr. Nielsen: “I fail to see how we can turn our backs on the possibility that RADOX could complicate our situation–that is, if RADOX continues to develop, we are no longer exclusively the proud possessors of measurement by electronic means.” It did not take Nielsen long to move. RADOX was vulnerable on two fronts–patent and finance–and each front was quickly attacked. Regarding patents, it turned out that both parties had patents pending, and the U.S. Patent Office ultimately declared “interference” existed. Nielsen’s major thrust, Sindlinger maintained, was to use the cloudy patent situation to chill the interest of the investor group in any financing help for RADOX.
Years later, Nielsen’s son more or less admitted that his father talked investors out of supporting Sindlinger and the RADOX system:
A man by the name of Ralph Bard Sr. who lived in Chicago and had been Secretary of the Navy called on my father. He was considering investing in Sindlinger?s operation and asked my father for his opinion of the company. My father wrote him a letter concluding that Sindlinger?s device would not be a success. In short, in my father?s opinion, this would not prove to be a good business.
A little over a decade later, the FTC actually had to go after Nielsen for using its patents to pressure competitor Arbitron, leading to a consent decree:
A patent infringement suit brought by Nielsen also arguably deflected ARB from competing head-to-head with Nielsen in network television ratings with its Arbitron instantaneous audience measurement system in the late 1950s. More recently, to deal with measurement of cross-platform viewing, Nielsen has used acquisition to build its intellectual property portfolio and continues to use litigation to slow down its competitors.
While the outcome of patent disputes may be uncertain, litigation or licensing undertaken to protect and/or monetize patents does not itself present unusual legal reisk to the patent holder. Such risk does adhere, however, if the patent was fraudulently acquired or was leveraged to extend beyond its rightful metes and bounds. The FTC found Nielsen guilty of such misconduct leading to a 1963 consent decree. Two of Nielsen’s business practices that violated the FTC Act were (1) the systematic use of patent proceedings “to discourage potential and actual competitors from developing and using… devices for… measuring… audiences… and has attempted to impede and sabotage the financing of these competitive efforts.
So what does something that happened more than 50 years ago have to do with today? It appears that Nielsen has continued to leverage this particular playbook. First, Nielsen freely admits that it holds a monopoly in the ratings game:
Neither party disputes that Nielsen exercises monopoly power over the television audience measurement services industry, both nationally, for the United States as a whole, and for 210 local markets
And it’s still using patent claims to stifle competition. Back in 2016, Nielsen bought Gracenote for $560 million just three years after it had been sold for $170 million. Just what could have represented so much value for Nielsen? Well, just a couple months before Nielsen bought Gracenote, Gracenote had sued a company called Sorenson Media for patent infringement. Sorenson Media had an “automatic content recognition” ACR platform for measuring viewers of TV broadcasting — exactly the market Nielsen wishes to maintain its monopoly over.
How did that turn out? Well, Sorenson declared bankruptcy last fall (in large part due to an incredibly stupid contract it had signed), but I’m sure the cost of a patent lawsuit didn’t help. Oh, and in February, Nielsen bought up Sorenson’s assets at firesale prices.
And that’s not all. Last year another small competitor, ErinMedia, sued Nielsen, claiming antitrust violations and that Nielsen was using “predatory practices designed to prevent competitive entry by companies like ErinMedia.” A few weeks later, the company announced that it was effectively shutting down, noting that Nielsen had “chilled” its ability to close an investment round.
Oh, and remember Arbitron? The company that was at issue back in the 1960s? Nielsen bought them a few years back, leading the FTC to put some conditions on the deal in hopes that it would not “substantially lessen competition.” So far that doesn’t seem to be working.
And that brings us to the latest Nielsen use of patents against an upstart competitor. Last fall, Nielsen sued upstart competitor Samba TV, claiming patent infringement. The patents at issue — 9,066,114, 9,479,831 and 9,407,962 — all are incredibly vague and generic, and appear to be the kind of patents that aren’t supposed to be allowed in a post-Alice world.
As Samba notes in its motion to dismiss, nothing here should have been patented in the first place:
For centuries, families and friends have gathered for plays and concerts?and more recently, for television and radio programming. Most silently observe. But others, often because they are already familiar with the programming, offer commentary: about the director, the actors, or the scenes. Some react to the content in order to enhance it: a lawyer presenting an animation typically offers comments at preplanned moments; or a theater employee may need to adjust lighting or curtains at the conclusion of certain scenes. The process of recognizing parts of a video, song, or other content and reacting?either instantly or at a later time (e.g., during a commercial break)?is not patentable. It is an abstract concept involving the three main stages of memory: processing, storage, and retrieval. Alice Corp. Pty. v. CLS Bank Int?l, 134 S. Ct. 2347, 2356 (2014) (a ?method of organizing human activity? is not eligible for patenting).
Gracenote?s patents claim abstract concepts without contributing any new inventive technology to achieve them. Instead, the claims merely use existing technologies?technologies Gracenote does not even claim to have invented?as tools to carry out the concepts. The ?114, ?831, and ?962 patent claims use identifiers, called fingerprints, to recognize portions of audio or video signals and trigger responsive actions at predetermined times during the playback, such as providing information about a scene at its conclusion. The patents, however, do not purport to have invented fingerprints or even an improved fingerprinting technique. Using known fingerprinting technology as a tool to perform the abstract concept of signal recognition and reaction is patent-ineligible under 35 U.S.C. § 101.1
And yet, whether or not the court recognizes this and throws out the case, this lawsuit still might be effective in basically stifling a competitor’s ability to even exist in the market. As James Madison once warned: “the monopoly itself, in its original operation, may produce more evil than good.”