Thursday, May 10, 2012

Advertising vs. Product Placement Patent Style

The multimedia patent world aligns with two of our favorite patent portfolios. The MPEG-LA suite of patents - where the titans of the multimedia revolution cross-licensed all of their patents and battle it out in the marketplace; and the Multimedia Patent Trust's holdings; a small but formidable collection of nine patents that includes six in the MPEG space and three in the speech space. Our favorite in the MPT collection is the Netravali patent 4,383,272 which has to do with updating pixels to distinguish moving areas of a picture. From a 50,000 foot view, only compressing the parts of the picture that change to save space. A lot of people think this is a seminal invention in the evolution of HDTV. The patent applications we look at here are made possible by the techiques defined by Mr. Netravali and his co-inventor John D. Robbins.

The first thing we did when we started looking at the patent applications was to define multimedia. One of the sources we were working with defined it as "a transmission that combines media of communication - text, and graphics and sound, etc." That seemed clear enough - if it has pictures, text, and makes noise it's multimedia. No requirement for movement.

One of the published patents we came across in the multimedia space was 10/112,519 - Method and System for Providing Intelligent Advertisement Placement in a Motion Picture. The application describes an invention for embedding advertisements into motion picture content using personalized data. The individual inventors describe a process for swapping out objects in the motion picture with advertising images based on personalize data. I get Diet Coke, you get Mountain Dew, if you're in Louisville, Kentucky or Jeffersonville, Indiana you get Big Red - America's #1 Red Soda.

Throughout the application the inventors use the phrase "motion picture". So, what's a motion picture? According to the web and the old school paper dictionary, a motion picture is a "movie," a form of entertainment that enacts a story by sound and a sequence of images giving the illusion of continuous movement. Another definition says a motion picture is a length of film with or without recorded sound bearing a sequence of images creating the illusion of movement. OK. So, a movie is a motion picture? It depends. Merriam-Webster says it's a series of pictures projected on a screen in rapid succession with objects shown in successive positions slightly changed to produce the optical effect of a continuous picture in which the objects move. This application was filed in March 2002 and is a continuation in part of an application filed in January 2000.

Fast forward to July of 2006 when patent application number11/486,683 - System for Creating Dynamically Personalized Media was filed. The inventors describe a multi-media object management system to manage the delivery of product placements in a multi-media program. They describe modifying the content in which the multi-media object locations that can be brokered are replaced with content defined by advertisers based on demographics or other user attributes. The patent teaches a multi-media object location comprising "a spatial and temporal site." (What??) The specification talks about selling the multi-media object locations to advertisers. I like the figures. Nice, easy to understand pictures. The application seems a little heavy with obscure vocabulary no doubt added to help insure the widest possible coverage if and when a patent is granted. (As of today it hadn't.)

Time for a little clarity. Is a multi-media object an advertising image or is it some precursor thing where you place an advertisig image? What about this spatial and temporal thing? Is this the space where the advertising image goes and an event that takes place over time kind of like the guy drinking the soda in the picture above? You have to ask yourself what words will the examiner use to do their own prior art search? What will the phrase multimedia object return? A multimedia object comes from the world of object oriented programming, MPEG, and the graphics world.

One application discusses product placement, the other discusses advertising. Isn't product placement advertising? Yep. Product placement is defined as an advertising technique used by companies to subtly promote their products; a form of advertising where branded goods or services are placed in context usually devoid of ads, such as movies, the story line of television shows or news programs. (We were good until the news programs part, notice all the anchors tweet from their iPads.)  Is product placement subtle?

This is a vocabulary conundrum. But you have to ask yourself, what is the impact of the word choices of the inventors? Will the choice of words in the claims and description of the invention make a difference? What happens when these applications hit USPTO? USPTO has to figure out what to do with the patent applications and which examiners are going to look at them. Should you expect that the content would drive them to the same class?

The motion picture advertising patent is classified in class 725/34. (In case you are wondering, the first boldfaced class on a published patent application is the Primary classification and drives which Group Art Unit at PTO is going to examine your patent application.) The multi-media object product placement patent shows class 705/14 as the the primary class.

Which means?

The two independent inventors who wrote about motion pictures and advertising had their patent classified in class 725/34 a class for interactive video distribution systems, PROGRAM, MESSAGE, OR COMMERCIAL INSERTION OR SUBSTITUTION: Subject matter comprising means or steps for inserting or substituting a video program or other information beyond the control of a viewer, television, for operator interfaces for video sequencing or editing specific to individual user or household: subject matter comprising means or steps for conveying user-specific data. JACKPOT!!

705/14 falls under Data processing: Financial, Business Practice, Management, or Cost/Price Determination - Distribution and redemption of coupon, or inventive or promotion programs. A business method.  The class definition says, "Note - A display or advertising system is included herein." A display or advertising system? Perplexing - is this a method, a business practice, a process - I guess we'll see.

Patent classification remains an illusive art and USPTO changes its mind along the way but sometimes plain language works best at getting your patent where you want it to go. The examiners are probably happy to have something that helps them find the invention in the blur of words. We have a motion picture where we replace images with advertising images selected based on characteristics of the viewer. Then we have a multi-media object consisting of a spatial or temporal site. The space and time continuum - isn't that what movies are? As another testament to the art of a well crafted patent application. The independent inventors in the motion picture advertising application started their claims by saying: "What is claimed is:" The multi-media object inventors started their claims with: "What is new and desired to be protected by Letters Patent of the United States is."

There is something to be said for clarity and simplicity of language but don't expect it to show up on patents anytime soon.