ComScore’s Patent War

Claims infringement against DoubleVerify, AdSafe, Moat

The ad tech ecosystem only really ever gets controversial when premium brands' ads somehow end up on sketchy sites. That is, until comScore launched a three-front patent war.

As first reported by AdExchanger on Tuesday, comScore has filed lawsuits against DoubleVerify, AdSafe Media and Moat for patent infringement. ComScore is claiming that the three verification/targeting companies have each infringed upon eight patents overall. The patents in question relate to comScore's ability to monitor, measure and report on how content is displayed online.

But companies have been performing tracking that sort of thing for years, so why would comScore get all litigious about it now? Money.

ComScore, which acquired the ad verification firm AdXpose last year, is building a tool that would prevent display ads from being served until they can actually be viewed on a Web page, according to sources with knowledge of the product’s development. By providing advertisers frustrated by paying for ads that users can never see with such a preventative tool could be a serious moneymaker for comScore, and further embed the company into the digital ad buying process.

“Viewability has the potential to be the new currency,” explained Michael Cassidy, founder and CEO of ad network Undertone. As it happens, comScore’s stock has dropped 35 percent since this year’s peak of $23.68 on March 13, and the company is scheduled to report second-quarter earnings on Thursday, less than two weeks after it filed the first suit in its patent battle.

“Viewability is a big deal,” added Forrester senior analyst Joanna O’Connell. For big budget brand advertisers to move more of their dollars online, publishers need to prove the quality of their inventory, she said, and a viewability tool would expedite that process.

Right now advertisers and publishers are largely on their own to make sure impressions that are served are actually viewed. That's why ad verification companies like AdSafe and DoubleVerify (the subjects of the suit) have risen in prominence over the past few years. These companies claim to have technology which warns against buying ads that might not be seen, or at least lets brands know when some of their ads turn out to be invisible to users.

As an alternative, brands can turn to companies like demand-side platform Triggit. According to CEO Zach Coelius, firms like Triggit help brands purchase only viewable ads by setting price floors (in other words, really cheap ads sold on exchages are cheap for a reason, so don't buy them).

But to date, no industry standard for ad viewability has emerged—although the technology exists, according to insiders.

Google is making its push with Active View, which the company claims will guarantee on-screen impressions. But two years ago MSNBC rolled out its solution, ad-rendering system ServeView that guarantees viewability. "In my opinion, every major premium online property should have gotten behind this and rolled out something similar by now, as it bolsters rationale for their higher price points versus the cluttered ad exchange landscape," said Vik Kathuria, managing director of corporate strategy and digital investment at GroupM/MediaCom.

That reality may be getting closer. Viewability is a much discussed topic at industry conferences. The Interactive Advertising Bureau, the Association of National Advertisers and the American Association of Advertising Agencies have made viewability a cause of sorts after teaming together in 2011 on an initiative called Making Measurement Make Sense.

ComScore has been part of that push, with CEO Maghid Abraham giving a keynote on the topic during the IAB’s Annual Leadership Meeting in February. Claiming that serving too many ads kneecaps the economics of advertising, Abraham said fewer ads should be served on a page and that companies should "only count impressions that reach a real user and have a chance to make an impact."

But arriving at an industry standard requires a host of competitors coming to an aggreement, which is easier said than done. ComScore’s patent suits would seem to complicate that all-hands approach. “The problem with viewability is if we allow one company to set that standard and make it proprietary, really what it becomes is a tax that we have to pay to that particular company,” said Coelius.

On the flip side, O’Connell said that comScore carries a premium pedigree that could legitimize the viewability push and ease brand marketers’ concerns about wasted buys.

“If you talk to a publisher who’s working with a buyer where both are using some audience measurement tool, the big frustration for the publisher will be, ‘Well, I’m not using the same tool that the buyer is and they’re telling me that I’m underdelivering on the audience that I promised them whereas my tool was saying I delivered it,’” which underscores the need for standards, O’Connell said.

Coelius sees the move as being more fear-driven. “For [comScore] to [file these patent suits] is indication that they’re struggling to remain relevant in a rapidly moving marketplace,” he said. ComScore is far from being the first financially struggling tech company to use its patents as muscle. Even as recently as March Yahoo filed a much-derided patent infringement suit against Facebook, which the companies settled earlier this month.

And in April Augme Technologies, parent company to mobile ad firm Hipcricket and mobile tech company Jagtag, sued mobile ad network Millennial Media for patent infringement. When the company—whose stock has fallen 42 percent in the past year—bought Jagtag last summer, Augme CMO David Apple told this reporter that of particular value to Augme were Jagtag’s patents.

Like Yahoo, comScore could face severe backlash for initiating the patent fight, particularly when considering the specific patents comScore is wielding in these cases. Of the eight patents comScore claims have been infringed upon, the rights to seven were acquired from Nielsen after the two companies settled their own patent spat last December. Then there’s the fact that these patents are old. The most recent three were filed in 2006, and by all indications those patents are refilings of another patent filed in January 2000 but not issued until June 2008.

Three others were filed between 1996 and 1998, and the remaining one was filed in 2001, all when Internet advertising was in its infancy. The U.S. Patent Office isn’t necessarily well-suited to determine whether an idea should be owned by a single company, as startup godfather Paul Graham has written.

“Whenever software meets government, bad things happen, because software changes fast and government changes slow. The patent office has been overwhelmed by both the volume and the novelty of applications for software patents, and as a result they've made a lot of mistakes,” the co-founder of startup incubator/accelerator Y Combinator wrote in 2006. “The most common is to grant patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be non-obvious.”

But often companies or individuals who hold the rights to foundational software patents use them primarily to protect themselves and others who build businesses based on the patented ideas. AOL CEO Tim Armstrong said earlier this year that the company held “foundational patents for the Internet,” which it then sold to Microsoft and potentially ended up in the hands of Facebook. Facebook, for that matter, benefitted from LinkedIn co-founder Reid Hoffman and eventual Zynga founder Mark Pincus owning the famed “Six Degrees” patent, which is considered seminal to social networking.

Hoffman told The Facebook Effect author David Kirkpatrick that he and Pincus “bought it defensively, to make sure no one would kill the nascent industry.”

As for the new viewability patent war itself, the companies involved are keeping mum for now. For the defendants, that’s not too surprising considering that none received a heads up from comScore before the suits were filed and none have actually been served, according to sources close to the companies. But each company provided statements to Adweek when contacted for comment:

  • “comScore has invested significantly in developing, and in some cases acquiring, our technology and intellectual property and we intend to protect these investments. We do not offer any specific comment on pending litigation,” said a comScore spokesperson.
  • “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 1990s' vintage technology that is rapidly becoming outdated. We feel strongly that our proprietary technology is not covered by these old patents,” AdSafe said.
  • "Our talented team of computer scientists, physicists, mathematicians and designers work long and hard inventing solutions to solve some of the biggest challenges in our industry. We take our commitment to innovation very seriously and while we will vigorously defend ourselves, we remain focused on serving our clients and creating new ways to improve the digital landscape," said a Moat spokesperson.