Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 1 of 21 PageID #: 14427
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`
`
`
`Plaintiff,
`
`
`Defendant.
`
`
`Civil Action No. 5:19-cv-00036-RWS
`
`JURY TRIAL DEMANDED
`
`
`
`MAXELL, LTD.,
`
`
`v.
`
`APPLE INC.,
`
`
`
`
`
`APPLE INC.’S DAUBERT MOTION TO EXCLUDE THE OPINIONS AND
`TESTIMONY OF PLAINTIFF’S SURVEY EXPERT DR. TÜLIN ERDEM
`
`
`
`

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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 2 of 21 PageID #: 14428
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ............................................................................................................. 1 
`BACKGROUND ON DR. ERDEM’S SURVEY ............................................................. 2 
`LEGAL STANDARDS FOR EXCLUDING UNRELIABLE SURVEYS AND
`RELATED TESTIMONY ................................................................................................. 5 
`ARGUMENT ..................................................................................................................... 6 
`A. 
`Dr. Erdem’s Lack of Controls Renders Her Survey Results Inadmissible ............ 6 
`B. 
`Dr. Erdem’s Measurements Of Awareness And Relative Importance Are
`Irrelevant To Any Measurement Of Value ............................................................. 9 
`1. 
`Dr. Erdem’s “User Awareness” Opinions Are Irrelevant .......................... 9 
`2. 
`Dr. Erdem’s “Relative Importance Of Features” Opinions Are
`Irrelevant .................................................................................................. 10 
`Dr. Erdem’s Relative Importance Survey Relied On Flawed
`Methodology ............................................................................................ 11 
`Dr. Erdem Did Not Correctly Describe The Accused Features As To The
`’999 And ’317 Patents ......................................................................................... 13 
`CONCLUSION ................................................................................................................ 15 
`
`C. 
`
`3. 
`
`
`
`I. 
`II. 
`III. 
`
`IV. 
`
`V. 
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`
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`
`
`i
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`

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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 3 of 21 PageID #: 14429
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`
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`CASES 
`
`TABLE OF AUTHORITIES
`
`Page
`
`CytoSport, Inc. v. Vital Pharm., Inc.,
`617 F. Supp. 2d 1051 (E.D. Cal. 2009)..................................................................................... 9
`
`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579 (1993) .................................................................................................... 5, 6, 9, 10
`
`Evory v. RJM Acquisitions Funding L.L.C.,
`505 F.3d 769 (7th Cir. 2007) .................................................................................................... 6
`
`Fractus, S.A. v. Samsung,
`No. 6:09-CV-203-LED-JDL, 2011 WL 7563820 (E.D. Tex. Apr. 29, 2011) .................. 13, 14
`
`Kumho Tire Co. v. Carmichael,
`526 U.S. 137 (1999) .................................................................................................................. 6
`
`LaserDynamics, Inc. v. Quanta Comput., Inc.,
`694 F.3d 51 (Fed. Cir. 2012)............................................................................................. 10, 11
`
`Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd.,
`817 F. Supp. 1103 (S.D.N.Y. 1993), vacated pursuant to settlement, 859 F.
`Supp. 80 (S.D.N.Y. 1994) ......................................................................................................... 6
`
`Nat’l Football League Properties, Inc. v. ProStyle, Inc.,
`57 F. Supp. 2d 665 (E.D. Wis. 1999) ........................................................................................ 7
`
`Oracle Am., Inc. v. Google Inc.,
`No. C 10-03561 WHA, 2012 WL 850705 (N.D. Cal. Mar. 13, 2012) ............................. 12, 13
`
`Scott Fetzer Co. v. House of Vacuums Inc.,
`381 F.3d 477 (5th Cir. 2004) .................................................................................................... 6
`
`Valador, Inc. v. HTC Corp.,
`242 F. Supp. 3d 448 (E.D. Va. 2017) ................................................................................... 6, 9
`
`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)......................................................................................... 10, 12
`
`Visteon Glob. Techs., Inc. v. Garmin Int’l, Inc.,
`No. 10-CV-10578, 2016 WL 5956325 (E.D. Mich. Oct. 14, 2016) ................................. 12, 13
`OTHER AUTHORITIES 
`
`6 McCarthy on Trademarks and Unfair Competition (5th ed.) ...................................................... 7
`
`
`
`ii
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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 4 of 21 PageID #: 14430
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`
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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`THE FEDERAL JUDICIAL CENTER’S REFERENCE MANUAL ON SCIENTIFIC EVIDENCE
`(3d ed. 2011) ......................................................................................................................... 8, 9
`RULES 
`
`Fed. R. Evid. 702 ........................................................................................................................ 5, 6
`
`
`iii
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`
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`I.
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`INTRODUCTION
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`The opinions of Dr. Tülin Erdem, the witness Maxell offers to provide opinions
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`concerning a survey that purports to show “awareness” and the “relative importance” of certain
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`features and functionalities of the accused mobile devices in this case, are fundamentally flawed
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`and should be excluded under Daubert for three reasons.
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`First, Dr. Erdem did not follow the standard practice of including proper “controls” in
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`her survey. This renders her results scientifically unreliable. Specifically, her survey did not use
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`a simple control-test methodology, similar to the use of a placebo group in medical research, to
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`filter out responses that are based on factors unrelated to the specific feature she surveyed.
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`Using a control group to filter out this “noise,” by comparing the results of one group examining
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`the accused feature to those of another group examining a noninfringing alternative, is the only
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`legally recognized method to ensure that survey evidence is not inaccurate or misleading.
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`Second, as she admits, Dr. Erdem’s survey only purported to measure users’ “awareness”
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`and the “relative importance” to those users of the limited set of “granular” features she surveyed
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`(features which are not of “absolute” importance to users’ purchasing decisions). But these
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`measures are wholly irrelevant to any issue in this case. Maxell’s damages expert Carla
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`Mulhern, their most logical consumer, did not rely on Dr. Erdem’s “awareness” survey results,
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`citing (without explanation) only to the survey’s “relative” importance numbers to derive
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`“value.” And in relying on the “relative” importance measure, Ms. Mulhern disregards the fact
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`that Dr. Erdem did not measure the value of the asserted patents in any way, whether as a
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`function of the value they add to the accused products or otherwise. Under directly applicable
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`case law, evidence of the “relative” importance of allegedly patented features is irrelevant for the
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`purpose of ascribing value to the patents or their contribution to the accused products.
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`Finally, Dr. Erdem’s survey described the allegedly infringing functionality of two of the
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`1
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`five features it purports to survey in a manner that conflicts with Maxell’s own technical experts’
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`description of that functionality. Yet Dr. Erdem has no technical training, did not even read the
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`patents, and has no independent basis for understanding that functionality. Ex. B, Erdem Tr. at
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`25:7-26:4. This renders irrelevant her conclusions for those two patents.
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`II.
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`BACKGROUND ON DR. ERDEM’S SURVEY
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`Dr. Erdem’s survey asked respondents questions about their awareness of and the relative
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`importance of certain purported iPhone features. Ex. A, Expert Report of Dr. Tülin Erdem
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`(“Erdem Report”) ¶ 13. Specifically, Dr. Erdem surveyed five features that allegedly relate to
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`functionality accused of infringing certain of Maxell’s asserted patents, four features that are
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`unrelated to the accused functionality, and one feature that does not actually exist. Dr. Erdem
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`described the five accused features as follows:
`
`Patent
`’317 patent
`
`’999 patent
`
`’306 patent
`
`’586 patent
`
`Allegedly Corresponding Functionality
`Automatic GPS map orientation. When you use a navigation application on
`your iPhone for walking navigation, your map will rotate automatically so that
`whenever you turn or change directions, the map will always face the direction
`you are walking. Without this feature, the map would face in one constant
`direction, such as north, and you could manually rotate the map on the screen
`using your fingers or by rotating your entire iPhone if you want the map to
`face the direction you are walking.
`Friend locator. You are able to use your iPhone to find the location of a friend
`who has enabled the feature and to obtain directions to that location. Without this
`feature, you could obtain a friend’s location through a third-party location app
`(such as WhatsApp) or by asking your friend for their location, which you could
`then enter into a navigation app for directions to your friend’s location.
`Caller name announcement. Your iPhone can be set to both ring and announce
`the caller’s name (for example, audible ring, then “Call from Joe Smith”, then
`audible ring) if the name is stored in your contacts. Without this feature, your
`iPhone could either ring (for example, audible ring only) or announce the caller’s
`name (for example, “Call from Joe Smith” only). If you choose to have your
`device ring, you could set up different ringtones for individual contacts.
`Unlock Apple Watch with Apple iPhone. You can choose to have your Apple
`Watch unlock automatically when your iPhone is unlocked when both devices are
`in the same location. Without this feature, you would need to manually unlock
`your Apple Watch separately from your iPhone by typing a passcode on your
`Apple Watch, or choose to keep your Apple Watch unlocked at all times.
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`2
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`
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`’991 patent
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`Pausing videos for video calls. With this feature, if you receive a video call
`while you are viewing a video on your iPhone, the video call can be answered
`from the video screen and the video you are watching will be automatically
`paused. When the call is over, the video you were watching will automatically
`restart. Without this feature, you could manually pause the video and then restart
`it after the video call, or answer the call as an audio call from the video screen.
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`Erdem Report ¶¶ 16-20, 30.
`
`Dr. Erdem described the four un-accused, or “distractor/control features,” as follows:
`
`Cut, copy, and paste. You can cut, copy, and paste words within or between most applications
`(such as webpages, emails, and text messages) on your iPhone. Without this feature, you could
`retype or dictate the text you want to duplicate.
`Panorama photography mode. Your iPhone camera can take panoramic images by moving the
`camera across a scene in one smooth motion. Without this feature, you could still take standard
`photos.
`World clock. You can add multiple clocks to show the time in other major cities and time zones
`around the world using the World Clock app on your iPhone. Without this feature, your iPhone
`would still show the local time on the screen.
`Auto brightness. Your iPhone’s light sensor adjusts the screen brightness based on your
`surroundings. This will dim the screen in dark environments and brighten it in well-lit areas, which
`can help maximize battery life. Without this feature, you could adjust screen brightness manually.
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`Id. ¶¶ 31-33.
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`And Dr. Erdem included one non-existent “Device Start-Up Countdown” feature:
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`Device start-up countdown. Every time you turn on your iPhone (for example, after a reboot),
`the start-up screen will show a countdown of how much time is left (in minutes and seconds)
`before your device is fully functional and ready to use. Without this feature, you would not know
`exactly how much time your device needs to start-up when you turn it on.
`
`Id. ¶ 35.
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`Respondents to Dr. Erdem’s survey who satisfied various qualification criteria were
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`asked two questions about the surveyed features. The first asked for users’ “awareness” of each
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`of the features: “For the features you just reviewed, which of the following best describes your
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`prior experience with them in using your iPhone?” Respondents were asked to choose one of
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`three responses: “I was aware of this feature on my iPhone prior to this survey,” “I was not
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`aware of this feature on my iPhone prior to this survey,” and “Don’t Recall / Unsure.” The
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`following is a screenshot of how this question was presented to respondents:
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`3
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`Erdem Report, Appendix B at B-17.
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`If a respondent was aware of the feature, the respondent would then be asked the second
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`question: to rank the “importance” of the feature to the respondent’s “experience using your
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`iPhone” on a five-point scale: “How important or unimportant are each of the following features
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`in your experience using your iPhone?” As shown in the following screenshot, respondents were
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`asked to select one of six answers: “Very important,” “Somewhat important,” “Neither important
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`nor unimportant,” “Somewhat unimportant,” “Very unimportant,” and “Don’t Know / Unsure”:
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`4
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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 9 of 21 PageID #: 14435
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`Erdem Report, Appendix B at B-18. Results from Dr. Erdem’s survey are shown in Exhibits 3-5
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`to her Report.
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`Maxell’s damages expert, Carla Mulhern, purports to rely on the “relative importance”
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`results from Dr. Erdem’s survey to establish the value of certain allegedly patented features as
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`part of her Income Approach to calculating reasonable royalty damages. See Ex. C, Expert
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`Report of Carla Mulhern (“Mulhern Report”) ¶¶ 215-221.
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`III. LEGAL STANDARDS FOR EXCLUDING UNRELIABLE SURVEYS AND
`RELATED TESTIMONY
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`Only expert testimony that assists the trier of fact to understand the evidence or to
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`determine a fact in issue is admissible. Fed. R. Evid. 702. This Court is the gatekeeper to
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`determine whether expert testimony meets this standard. See, e.g., Daubert v. Merrell Dow
`
`Pharm., Inc., 509 U.S. 579, 590–93 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
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`5
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`(1999). Maxell has the burden to prove that Dr. Erdem’s testimony is relevant to an issue in the
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`case and is reliable. Daubert, 509 U.S. at 590–91. If it cannot, “[e]xpert testimony which does
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`not relate to any issue in the case is not relevant and, ergo, non-helpful.” Id. at 591. And more
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`specifically, “survey evidence . . . must comply with the principles of professional survey
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`research; if it does not, it is not even admissible.” Evory v. RJM Acquisitions Funding L.L.C.,
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`505 F.3d 769, 776 (7th Cir. 2007) (citing Fed. R. Evid. 702 and other cases); see also Scott
`
`Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 488 (5th Cir. 2004) (“serious flaws in a
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`survey will make any reliance on that survey unreasonable”).
`
`IV. ARGUMENT
`A.
`
`Dr. Erdem’s Lack of Controls Renders Her Survey Results Inadmissible
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`Dr. Erdem’s survey is unreliable and has “no evidentiary value” because it lacks controls
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`to compare the importance of the allegedly infringing features to noninfringing alternatives to
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`such features. Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd., 817 F.
`
`Supp. 1103, 1124 (S.D.N.Y. 1993), vacated pursuant to settlement, 859 F. Supp. 80 (S.D.N.Y.
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`1994). Her data, in effect, is “meaningless.” Id. Indeed, courts “routinely” hold that “a survey’s
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`lack of a control group or control questions constitutes yet another ground for granting a Rule
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`702 motion to exclude.” Valador, Inc. v. HTC Corp., 242 F. Supp. 3d 448, 463 (E.D. Va. 2017).
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`This is because “raw figures . . . can be inflated by background noise, or false positives.” Id.
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`Dr. Erdem fully understood the concept of having controls, which she acknowledged is
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`similar to having a test group and a placebo group in drug trials. Erdem Tr. at 63:2-11. She also
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`confirmed that controls are needed “where it is important to eliminate noise.” Id. at 63:12-19;
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`see id. at 87:24. As she explained, a control is important “just for good experimental design.”
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`Id. at 88:1-2. But when asked about what type of survey design she implemented in this case,
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`Dr. Erdem responded, “I don’t have an experimental design. So it is just a survey.” Id. at 93:25-
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`6
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`94:1; see id. at 88:3-4. She admits that she did not employ a standard control/test design and
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`only used a single “test” group of respondents (omitting any separate control group) (id. at
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`64:13-18). Dr. Erdem attempts to justify her failure to have a control group by asserting that the
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`same person should evaluate the importance of a feature and its alternative (id. at 64:14-25), but
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`she did not even use such a “within-subject” experimental design, where a control question and a
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`test question are given to the same subject. Id. at 101:13-102:4. Dr. Erdem’s only explanation
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`for failing to do so is that her survey method was “parsimonious,” id. at 76:25, 102:4, but her
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`frugality is no excuse. See, e.g., 6 McCarthy on Trademarks and Unfair Competition § 32:196
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`(5th ed.) (“The reason, of course, that accurate and scientifically precise surveys are not always
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`offered is that they are costly. Perhaps the best that can be said is that no survey at all is
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`better than a survey obtained ‘on the cheap.’”) (emphasis added).
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`Dr. Erdem’s failure to use a control/test design is particularly inexcusable because
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`Maxell’s technical experts told her about noninfringing alternatives to the accused features, and
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`she included descriptions of those alternatives in her single-subject survey. Erdem Report ¶ 30;
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`Erdem Tr. 65:8-13. She therefore could have created a survey that used controls based on the
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`information available to her. Id. at 68:9-16. Dr. Erdem’s conspicuous failure to design her
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`experiment without controls in the face of her own recognition that they are critical only further
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`undermines the reliability of her survey. “[T]here can be no trustworthy or valid assessment of
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`cause and effect unless surveys are intertwined with proper experimental designs (which, of
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`necessity, involve the utilization of proper controls).” Nat’l Football League Properties, Inc. v.
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`ProStyle, Inc., 57 F. Supp. 2d 665, 669 (E.D. Wis. 1999) (rejecting a survey that “essentially
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`asks only one question . . . without further probing . . . and without showing any ‘control’ [ ] to
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`any survey respondents or asking any control questions”).
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`Dr. Erdem herself, as well as references she relies on, acknowledges the importance of
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`7
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`controls. THE FEDERAL JUDICIAL CENTER’S REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (3d
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`ed. 2011), which Dr. Erdem cites heavily (Erdem Report ¶¶ 54-56, 63 at n.59-63, 69-72),
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`explains: “Surveys that merely record consumer impressions have a limited ability to answer
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`questions about the origins of those impressions. The difficulty is that the consumer’s response
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`to any question on the survey may be the result of information or misinformation from [other]
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`sources.” Ex. D, Reference Manual at 397. “By adding one or more appropriate control groups,
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`the survey expert can test directly the influence of the stimulus.” Id. at 398. Conversely,
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`“[w]ithout the control group, it is not possible to determine how much of [the response] is
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`attributable to respondents’ preexisting beliefs or other background noise (e.g., respondents who
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`misunderstand the question or misstate their responses”). Id. at 398-99. Dr. Erdem
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`acknowledged this, explaining: “The idea is in control test, for those context, where it is
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`important to eliminate noise, then a control is use[d].” Erdem Tr. at 63:16-19.
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`Because Dr. Erdem did not include any noninfringing alternatives as a control, there is no
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`basis for determining whether respondents found a surveyed feature was truly important
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`compared to the available noninfringing alternatives, or whether the measured values are a result
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`of noise (that, is based simply on knowledge of a broadly defined device function—such as
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`“navigation using a map”—without regard to the narrow, allegedly infringing method of
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`navigating). And there is clear evidence that the results of Dr. Erdem’s survey are noisy and
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`unreliable.
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`For example, Dr. Erdem surveyed a feature she called “Automatic GPS Map Orientation”
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`that does not actually exist within Apple Maps. See infra Section IV.C. Nevertheless, 56% of
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`respondents claimed awareness of this nonexistent feature and of the respondents asked
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`specifically about this nonexistent feature, 50% claimed it was “very important” to their
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`experience using iPhone. Similarly, Dr. Erdem intentionally included another nonexistent
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`8
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`feature called “Device start-up countdown.” Of the 2,268 respondents asked about this
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`nonexistent feature, 621 or 27% reported being aware of it. See Erdem Report Ex. 3.1 These two
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`examples demonstrate that Dr. Erdem’s uncontrolled survey questions are error-prone and should
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`be excluded. Valador, 242 F. Supp. 3d. at 464.
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`B.
`
`Dr. Erdem’s Measurements Of Awareness And Relative Importance Are
`Irrelevant To Any Measurement Of Value
`
`Dr. Erdem acknowledged that her survey measured just two things: (1) users’ awareness
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`of a feature and (2) the importance of a feature relative to other unimportant features included in
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`her survey. Erdem Report ¶¶ 13, 25, 31; Erdem Tr. 58:17-59:7. But these measures are
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`irrelevant to determining the value of the features Maxell accuses of infringement and irrelevant
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`to infringement, invalidity, or any other issue in this case.
`
`1.
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`Dr. Erdem’s “User Awareness” Opinions Are Irrelevant
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`“Expert testimony which does not relate to any issue in the case is not relevant and, ergo,
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`non-helpful.” Daubert, 509 U.S. at 591. Dr. Erdem’s user awareness opinions do not tend to
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`prove or disprove any material fact at issue in this case relating to infringement, invalidity, or
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`damages, and are accordingly irrelevant. Notably, Maxell’s damages expert Ms. Mulhern, the
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`person who would most logically rely on Dr. Erdem’s opinions, does not even mention users’
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`awareness of the surveyed features. Neither do any of Maxell’s other experts. To the extent
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`Maxell asserts that user “awareness” is relevant to the value of the patented features, it has failed
`
`
`1 While Dr. Erdem purported to “control” for this 27% false awareness rate by terminating
`respondents who claimed awareness of the feature, that does not resolve the false awareness
`issue. If 27% of respondents are claiming that a nonexistent feature exists, the correct
`assumption is that around 27% of respondents to the other survey questions are incorrectly
`claiming awareness. Thus, the 27% figure should be subtracted from all of the awareness
`numbers to arrive at a true awareness figure. See, e.g., Reference Manual at 398 (subtracting the
`control percentage from the test); CytoSport, Inc. v. Vital Pharm., Inc., 617 F. Supp. 2d 1051,
`1075 (E.D. Cal. 2009) (net confusion level of 25.4% obtained by subtracting 26.5% in the
`control group from 51.9% in the test group).
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`9
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`to meet its burden to do so. Id. at 590–91. The mere fact that a user is aware of the existence of
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`a feature indicates nothing about what value, if any, that user places on such feature. For
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`instance, a user may be aware that an iPhone may function as a compass but not place any value
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`at all on the compass feature. Simply put, that users are “aware” of a compass feature neither
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`indicates that users find such feature valuable, nor how much value users would ascribe to it.
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`Because evidence of the value of the patented features “must be reliable and tangible, not
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`conjectural or speculative,” user awareness of an accused feature is not relevant to the
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`appropriate value to be placed on the patents or to any other issue in this litigation. See VirnetX,
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`Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014).
`
`2.
`
`Dr. Erdem’s “Relative Importance Of Features” Opinions Are
`Irrelevant
`
`“[V]ague qualitative notions of the relative importance” of allegedly patented technology
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`also cannot support a quantitative measurement of damages. LaserDynamics, Inc. v. Quanta
`
`Comput., Inc., 694 F.3d 51, 69 (Fed. Cir. 2012). Thus in LaserDynamics, the court rejected the
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`damages expert’s use of “relative importance” to adjust a royalty rate from 6% to 2%. Id. Here,
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`Dr. Erdem’s survey is precisely the type of “relative importance” survey that has no relevance to
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`computing the value of the patents. The attempt by Ms. Mulhern to rely on this portion of Dr.
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`Erdem’s survey has no reasoned basis.
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`Dr. Erdem’s survey measures only “the importance of the accused features to the iPhone
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`user experience relative to those of other features included in the survey.” Erdem Report ¶ 13;
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`see id. ¶¶ 25, 31. Dr. Erdem expressly did not measure the value of any feature. Erdem Tr. at
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`111:5-10 (Q: “And to follow up on your answer, the survey was also not designed to measure at
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`all the value that the survey respondents would place on a particular attribute; correct? A: I
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`didn’t measure it.”); see also id. at 59:16-17 (the “survey is not measuring absolute
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`10
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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 15 of 21 PageID #: 14441
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`importance”); id. at 106:14-21. Dr. Erdem likewise did not measure respondents’ purchase
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`probability or whether they would buy an iPhone because of the surveyed features. Id. at
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`110:13-25 (“It’s not about [users’] purchase probability. It’s not whether they will be buying the
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`iPhone because of this.”); see id. at 127:25-128:3.
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`While Ms. Mulhern purports to rely on Dr. Erdem’s relative importance results to support
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`a value measurement, Ms. Mulhern herself offers no opinion about how the two are related.
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`Mulhern Report ¶¶ 215-221. Instead, Ms. Mulhern jumps without explanation from “relative
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`importance” to “value.” Id. ¶ 220 (“Given the relative importance compared to the benchmark
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`features, these survey results suggest a value between $0.17 per unit and $0.63 per unit for the
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`‘Automatic GPS Map Orientation’ feature related to the ’317 patent”) (emphasis added); see id.
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`¶ 221 (similar).2 This error in Ms. Mulhern’s analysis is particularly egregious given that
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`Dr. Erdem expressly concedes she did not measure value. Erdem Tr. at 111:5-14. Again, it is
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`impermissible to translate a feature’s “relative importance” to any sort of monetary value for that
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`feature. LaserDynamics, 694 F.3d at 69. Because Dr. Erdem’s survey did not measure purchase
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`likelihood, value, or absolute importance, her survey is irrelevant to valuing the asserted patents
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`and should be excluded. Id.
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`3.
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`Dr. Erdem’s Relative Importance Survey Relied On Flawed
`Methodology
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`Multiple courts have held that surveys artificially constrained to focus on unimportant
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`features must be excluded because they fail to result in any meaningful measure of value and risk
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`confusing the jury. In Oracle Am., Inc. v. Google Inc., “the features selected to be surveyed . . .
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`were purposely few in number and omitted important features that would have played an
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`2 Apple is separately filing a Daubert motion to exclude Ms. Mulhern’s opinions, including her
`opinions that use and rely on Dr. Erdem’s survey to derive a value for certain patents.
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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 16 of 21 PageID #: 14442
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`
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`important role in real-world consumers’ preferences.” No. C 10-03561 WHA, 2012 WL 850705,
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`at *10 (N.D. Cal. Mar. 13, 2012). This “inappropriately focused consumers on artificially-
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`selected features and did not reliably determine real-world behavior.” Id. Specifically, the
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`survey expert in Oracle admitted that 39 features drove real-world consumers to purchase
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`smartphones, including “battery life, WiFi, weight, and cellular network.” Id. But rather than
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`ask for a comparison of the patented features to those features that might be relevant to a
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`consumer’s purchase decision, the survey asked respondents to compare only seven features,
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`“three of which were covered by the patented functionality.” Id. The inaccuracy of this
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`artificially constrained survey was further exacerbated by the survey’s inclusion of “an arguably
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`unimportant feature, voice dialing.” Id. Asking respondents to consider the value of the
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`patented features alongside voice dialing as opposed to, e.g., battery life, the survey expert
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`“warp[ed] what would have been [the respondents’] real-world considerations.” Id.
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`Similarly, in Visteon Glob. Techs., Inc. v. Garmin Int’l, Inc., the court excluded a
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`“relative value” survey because it excluded the most important features. No. 10-CV-10578,
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`2016 WL 5956325, at *6 (E.D. Mich. Oct. 14, 2016). Because the expert compared the patented
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`features to only one other feature that the expert admitted was unimportant, the survey
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`“express[ed] nothing about the value of the four patented features relative to other important
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`features of the accused devices.” Id. The court excluded the damages and survey experts’
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`testimonies because “[w]ithout an understanding of how valuable the four patented features are
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`to demand for the accused devices, i.e. without a calculation of the patented features’ footprint in
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`the marketplace, it is impossible for a jury to determine the profit that could actually be
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`attributed to Garmin’s use of the patented features.” Id. at *17 (citing VirnetX, 767 F.3d at 1326
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`(quotation marks omitted).
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`As with the excluded surveys in Oracle and Visteon, Dr. Erdem’s survey is unreliable
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`Case 5:19-cv-00036-RWS Document 363 Filed 06/30/20 Page 17 of 21 PageID #: 14443
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`because it relies solely on unimportant features that Dr. Erdem herself admits “are not the key
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`demand drivers” for purchasers of the accused products. Erdem Tr. at 78:19-21. According to
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`Dr. Erdem, “the most important attributes that affect why a person would buy an iPhone . . .
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`would be things like brand, the overall use, battery, camera” and other important features
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`including display size, display resolution, and operating system. Id. at 79:12-80:12. But none of
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`these important attributes were listed in her survey. See supra at Section II. Instead, Dr. Erdem
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`selected nine features, five of which Maxell purports to accuse of infringement and, by
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`Dr. Erdem’s own admission, none of which impact consumers’ purchasing behavior. Erdem Tr.
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`at 77:18-79:2. The four non-accused features that Dr. Erdem added to the survey included what
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`Dr. Erdem herself described as “granular features” like “Cut, copy, and paste,” and “World
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`clock.” Id. at 109:19; see supra at Section II. Asking consumers to consider the value of the
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`accused features alongside such minor features as opposed to, e.g., display size, “warp[ed] what
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`would have been [the respondents’] real-world considerations.” See Oracle, 2012 WL 850705,
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`at *10 (excluding survey that listed the accused smartphone features with unimportant features
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`like “voice dial”); see also Visteon, 2016 WL 5956325 (excluding a “relative value” survey for
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`excluding the most important features of the product). Dr. Erdem’s failure to compare the
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`allegedly infringing features to any of the features she herself admits would be drivers of
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`deman