NEWS21 August 2009

Patent row kicks off between Arbitron and Digimarc

Legal North America

US— Arbitron’s portable people meter (PPM) has a fresh controversy to deal with. Digital watermarking firm Digimarc is claiming that a key component of the radio ratings system infringes on its patents.

The claims relate specifically to Arbitron’s Critical Band Encoding Technology (CBET). This is the technology the company uses to embed inaudible codes in radio broadcasts, which are then detected and recorded by the PPM devices as a means of determining the audience size for various stations.

Arbitron says it has spent “over 20 years and millions of dollars developing and acquiring the technology associated with the PPM, including CBET” and has been granted “over 15 US patents relating to audio encoding and monitoring technology”.

But on 15 July Arbitron chief executive Michael Skarzynski (pictured) allegedly received a letter from Digimarc’s chairman and CEO Bruce Davis claiming that CBET infringes Digimarc patents, and that certain improvements to CBET which “enabled [the] successful commercialisation [of PPM] may require a licence from Digimarc”.

Arbitron claims that Davis threatened to pursue patent litigation against the company in the absence of “negotiation of a simple licence or more comprehensive business relationship”.

But Arbitron sued first. It has asked a Delaware District Court to rule that its technology does not infringe Digimarc’s patents, and that those patents are invalid for alleged “failure to satisfy one or more of the conditions of patentability set forth in Title 35 of the United States Code”.

Digimarc had not returned calls seeking comment at the time of publication.

The patent accusations are a new blow for Arbitron’s PPM, which since its introduction has faced criticism from ethnic-minority broadcasters who complain that their audiences are under-represented, and hence undercounted, in the ratings sample and that their ad income is sufffering as a result.

A group of congressmen and women recently called on the Government Accountability Office to investigate the system, while the Federal Communications Commission is already holding its own enquiry.

PPM critics have even appealed to President Barack Obama to intervene on the issue. Meanwhile the company continues to insist that the representation of black and Hispanic groups in its PPM sample is “strong” and that differences between listening figures from the PPM system and the paper diary-based method it replaces are because PPM measures actual listening, while diaries only measure recall and loyalty.