Neurofocus, Inc. has acquired a patent which seems to grant the firm broad and exclusive rights to use neuroimaging for marketing analysis. Here’s the text of the first claim (out of 21 total claims) from U. S. Patent 6,099,319:
1. A method of evaluating stimulus materials comprising:
selecting subjects;
exposing the subject to stimulus materials;
monitoring the subjects in a neuroimaging device while exposing the
subjects to the stimulus materials;collecting data from the neuroimaging device; and
analyzing the data. [Via Patentstorm]
This patent was actually issued eight years ago in 2000, and listed Gerald Zaltman and Stephen M. Kosslyn as the inventors. Zaltman and Kosslyn made the application a full decade ago in 1998. The claims certainly seem broad enough to encompass just about any use of brain imaging technology for marketing analysis. The real question is whether this patent will hold up if challenged. Did Neurofocus acquire this purely as a defensive strategy to avoid any possible future lawsuits? Or will they use it to pressure other neuromarketing service providers to obtain licenses?
The full Neurofocus press release is here. There will be more to follow on this story, I’m sure.
Roger, I read your posts with interest, and somehow you always manage to be on the cutting edge of things !!
You raise some interesting questions regarding this recent NeuroFocus patent acquisition. It appears that NeuroFocus is doing a whole host of things – consolidating its dominance in neuromarketing, serving notice to fMRI users, and potentially paving the way for newer technologies. Having done years of business strategy consulting, I like to call it a “defensive offensive” manuver !! Quite clever really, when you think of it. These young companies in Neuromarketing are taking pages and entire chapters out of the playbooks from the Silicon Valley competitive “Art of War” manuals.
Whether the patent’s claims are “too broad”, and will they stand in court is not the real question. Whether the patent is broad or not, NeuroFocus seems to have adopted a clever strategy of asking a chilling question to its clients who might consider using an fMRI competitor – “If you are a global corporation, and you are considering using an fMRI competitor of NeuroFocus, would you want your marketing strategy and market offerings to depend on the use of a potentially unlicensed patent?” Now, if you are a global company CMO, and not brain damaged, you can only have one answer !!
This again, is a strategy straight from the Silicon Valley playbook.
Now companies do fMRI research cleverly with universities. Does this NeuroFocus acquisition impact that research in academia? That is an interesting question for NeuroFocus. If a company’s R&D department uses fMRI to look at their packaging or product flavor, would they be violating this NeuroFocus patent? Or are companies considering using fMRI to research marketing in form or the other better off just paying an annual licensing fee to NeuroFocus? Or as you point out, should they enter “breadth and enforcability” litigation with NeuroFocus?
Every CMO and CEO I have consulted with would just send an annual check to NeuroFocus to license the patent, and be done with it. That way the R&D and marketing departments would be free to do with no hindrance of any kind. Yes, it is nuisance fee, but so what, one less thing to worry about.
It all depends on how aggressive NeuroFocus wants to go with this. The funny thing about patents is that even if they are not aggressive right now, they can always come back and retroactively extract a price !!
I would love to be a fly on the wall of their boardroom and find out what their board is cooking !! Maybe use an fMRI scanner on their board… but wait, would I violate their patent for thinking that?!!
Interesting analysis, Quince. The reactions from the industry will be interesting, although I presume most of the serious players were long aware of this patent.
Roger
It is quite amusing that the “inventors” never published a single scientific paper on actually using neuroimaging for marketing purposes. This is consistent with the fact that the patent has no actual specific methods or claims. It will be trivial to challenge, which will happen if there is something at all to this field.