CDCA excludes survey opinion

On October 23, 2013, Judge Kronstadt in the Central District of California issued an opinion in NetAirus Technologies, LLC v. Apple, Inc., No. LA CV10-03257 JAK, addressing a Daubert motion filed by Apple to exclude the surveys, expert reports, and opinions of the plaintiff's survey experts (Howard Marylander and James Berger) and references to the same evidence by the plaintiff's damages expert (Joseph Gemini). The Court granted-in-part Apple's motion.

As with most Daubert motions relating to surveys, the dispute centered over to what extent (if any) the survey bore a nexus to the patented technology. Apple argued, and the Court agreed, that "the surveys did not ask consumers about the [claim] limitations concerning transmission power." Apple argued that the case was therefore on all fours with the Fractus case from EDTX in 2011, but the Court distinguished Fractus and found that the dispute was a factual one for the jury to decide.

If considered in isolation, the Marylander and Berger surveys have the same defect as those that were excluded in Fractus. Neither Marylander nor Berger attempted to determine if consumers cared whether data formatted for computer email was sent to and from a local area network at a lower transmit power level than other data sent to a wide area network, as required by the asserted claims. However, NetAirus contends that the transmission power limitations are always met by iPhone 4 users. The Court has held that the nature of the transmission levels is a factual issue for the jury to determine.

However, for a few discrete issues the Court nevertheless excluded testimony and opinions. As one example, the Court excluded any discussion about a question asking Marylander survey respondents whether they would have preferred to pay $20 less for an iPhone without Wi-Fi capability or would have purchased their current phone at the price they paid. The Court held that reference to wi-fi functionality generally (as opposed to focusing on email use while connected to wi-fi), and the unreliable basis of the $20 figure, was not sufficiently tied to the asserted claims.

The Court also found that the Berger survey, unlike the Marylander survey, "was not constructed in a reliable manner." The Court found that no effort was made to account for difference in male/female response rates, that it was improper to ask prospective iPhone 4 users the same questions that were asked of current iPhone 4 users, and that "A survey that generates answers from respondents who have no basis to provide them is not one conducted according to accepted principles." Put another way, because the survey was not conducted pursuant to accepted scientific principles, it should be excluded as failing to abide by Daubert. Therefore, the Court denied the Berger survey in its entirety. The Court then held, unsurprisingly, that "Gemini may not testify about, or rely upon, portions of the Marylander and Berger surveys that have been excluded by this Order."