Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 1 of 11 PageID #: 25486
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`Plaintiff,
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`Case No. 5:19-cv-00036-RWS
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`JURY TRIAL DEMANDED
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`MAXELL, LTD.,
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`v.
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`APPLE INC.,
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`Defendant.
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`MAXELL, LTD.’S SUR-REPLY IN OPPOSITION TO
`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 453 Filed 07/29/20 Page 2 of 11 PageID #: 25487
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`TABLE OF CONTENTS
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`I.
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`ARGUMENT ..................................................................................................................... 1
`Maxell Established that Apple’s Preferred Control Test Design Was Not
`A.
`Appropriate For the Purposes of Dr. Erdem’s Survey. .......................................... 1
`Maxell Established the Relevance of the Survey’s “User Awareness” and
`“Relative Importance” Results. .............................................................................. 3
`Maxell Established that Dr. Erdem Sufficiently Described the Infringing
`Functionalities. ....................................................................................................... 4
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`B.
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`C.
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`i
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 3 of 11 PageID #: 25488
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Edmondson v. Caliente Resorts, LLC,
`C.A. 8:15-cv-2672, 2017 WL 10591833 (M.D. Fla. Aug. 31, 2017) ............................................. 2
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`Laser Dynamics, Inc. v. Quanta Comput.,
`694 F.3d 51, 69 (Fed. Cir. 2012)..................................................................................................... 3
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`Mohamed v. Kellogg Co.,
`2019 WL 1330920 (S.D. Cal. Mar. 23, 2019) ................................................................................ 3
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`Sentius Int’l., LLC v. Microsoft Corp.,
`C.A. 5:13-cv-00825, 2015 WL 331939, at *4 (N.D. Cal. Jan. 23, 2015) ....................................... 5
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`ii
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 4 of 11 PageID #: 25489
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`Apple insists that only one survey design is appropriate, no matter the purpose or what is
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`being measured. Apple argues that all surveys must have a control test design, apparently even
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`when it runs counter to what the survey seeks to test. Apple argues that all surveys must test
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`absolute value or else be irrelevant to any possible issue. And Apple argues that the description of
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`tested features must exactly track what is accused, and not necessarily what the patent claims. But
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`there is not only one right way to survey. All the law requires is that the survey be reliable, pertinent
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`to the inquiry, and compiled in accordance with accepted survey methods. Maxell has provided
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`significant evidence and legal support showing Dr. Erdem’s survey satisfies these requirements.
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`Yet Apple all but ignores Maxell’s positions, choosing instead to focus on the fact that the survey
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`does not match Apple’s survey design preferences. The “defects” Apple challenges are not defects
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`at all. They are sensible and acceptable survey design choices Dr. Erdem made in order to measure
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`the relative importance to consumers of patented features as compared to other features using well-
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`established survey methodology principles. Apple’s disagreements over its survey preferences are
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`appropriately handled through cross-examination and Apple’s motion should be denied.
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`I.
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`ARGUMENT
`A. Maxell Established that Apple’s Preferred Control Test Design Was Not
`Appropriate For the Purposes of Dr. Erdem’s Survey.
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`In its Reply, Apple continues to make the misleading assertion that Dr. Erdem did not
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`control her survey. As Maxell has already explained, however, Dr. Erdem did include controls,
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`just not the ones Apple wanted. Opp. (D.I. 399) at III(A)(2). For example, the survey included a
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`nonexistent feature in order to identify and exclude respondents who were prone to providing
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`feedback on features they were not familiar with. Id. at 7. The inclusion of this feature directly
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`addresses Apple’s stated concern that “there will always be some interviewees who are bored,
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`hurried, or just plain contrary and whose responses must be filtered out.” Reply at 1.
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 5 of 11 PageID #: 25490
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`Focusing on the control group test design that is the Apple’s obsession, Apple
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`acknowledges Maxell’s position that such design is not necessary for Dr. Erdem’s survey. And yet
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`Apple still argues that a control test design is always required. Apple continues to cite the same
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`types of case law, treatises, and survey manual that Maxell already showed is irrelevant. Opp. at
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`7. Every single piece of support Apple cites relates to surveys that test causal propositions or
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`likelihood of confusion. There is good reason that Apple has not cited any evidence standing for a
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`universal control test design requirement—it does not exist. Indeed, if a control group were
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`required for all surveys, then the survey manual repeatedly relied upon by Apple would not limit
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`its discussion regarding control groups or questions to surveys “Designed to Test a Causal
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`Proposition.” Mot. at Ex. D, p. 397. The issue here is not whether a control test design is ever
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`required; of course it may be required in certain instances. The question here is whether it is
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`required for Dr. Erdem’s survey to be reliable and sound. As Maxell set forth in detail, it was not.
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`Opp. at 5-7. Apple’s cited law and “evidence” is inapposite.
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`Unable to find any law or evidence to support its universal control test design requirement,
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`Apple argues that Maxell offers no plausible explanation for why measuring relative importance
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`without a control test design is appropriate here.1 But Maxell offered pages of explanation. Opp.
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`at 5-7. Maxell explained that use of a control test design here was not only unnecessary, but not
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`appropriate in view of what Dr. Erdem was testing. Opp. at 5-6. Dr. Erdem did not test a causal
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`proposition. She wanted each respondent to evaluate the importance of the enhancement enabled
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`by the Surveyed Asserted Patents. Id. To make such evaluation, the respondent had to compare the
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`infringing feature directly to the next best alternative. Id. To have one group evaluate the
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`1 Apple asserts the case Maxell cited, Edmondson v. Caliente Resorts, LLC, C.A. 8:15-cv-2672, 2017 WL 10591833
`(M.D. Fla. Aug. 31, 2017), confirms a control group is necessary. The case explicitly acknowledges that “[c]ontrols
`are not necessary in surveys.” Id. at *11 (emphasis added). Apple argues the holding is undermined by the fact that
`case “actually used a control.” But as reiterated herein, so did Dr. Erdem, just not the control Apple prefers.
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 6 of 11 PageID #: 25491
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`enhancement and one group evaluate the next best alternative, as Apple proposes, would not have
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`provided this data. The best way to obtain data on relative importance is to have the same
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`respondent directly compare the infringing feature to the next best alternative. Id.
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`B. Maxell Established the Relevance of the Survey’s “User Awareness” and
`“Relative Importance” Results.
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`Maxell concedes its survey does not measure absolute importance or purchase drivers. That
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`just happens to be the survey Apple prefers. But this does not render the survey irrelevant, as Apple
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`contends. To support its position, Apple cites the same case (for the same proposition) that it relied
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`upon in its Motion—Laser Dynamics, Inc. v. Quanta Comput., 694 F.3d 51, 69 (Fed. Cir. 2012).
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`But Maxell already explained why that case does not support Apple’s request for exclusion of Dr.
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`Erdem’s survey and opinions, including that the case did not even involve a survey. Opp. at 9.
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`Apple’s newly cited case is similarly uninstructive. Reply at 3. Mohamed v. Kellogg Co., 2019
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`WL 1330920 (S.D. Cal. Mar. 23, 2019) did not hold that “relative importance” surveys were not
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`admissible or relevant. Id. at *3. Rather, the Court held that the record failed to show how the
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`expert would translate the specific survey results there to a price premium (which was the goal of
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`the analysis). Id. The Court noted that the Plaintiff was missing the step of how she intended to
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`prove the price premium to which the survey result would be applied to arrive at damages. Id.
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`(contrasting with another case where a similar survey was deemed admissible because the other
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`step was performed). Here, Maxell has shown exactly how Ms. Mulhern used Dr. Erdem’s results
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`in her damages analysis. Opp. at 9-10. The results are clearly relevant.
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`To be clear, Maxell at no point argues or insinuates that Dr. Erdem’s survey is immune
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`from the requirement of sound methodology. To the contrary, Maxell and Dr. Erdem confirmed
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`that the survey was conducted using well-established survey methodology principles. Opp. at 10-
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`11. Dr. Erdem’s report directly addressed that her survey met the following criteria as set out in
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 7 of 11 PageID #: 25492
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`the Federal Judicial Center’s Manual for Complex Litigation: the population was properly chosen
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`and defined; the sample chosen was representative of the population; the data gathered were
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`accurately reported; and the data were analyzed in accordance with accepted statistical principles.
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`Mot. at Ex. A, Erdem Rpt. ¶¶ 51-65. Apple’s repeated citation to the same cases (for the same
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`purpose) is no more persuasive now than it was when those cases were included in its Motion.
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`Maxell explained that such cases are not applicable here because they involved different inquiries.
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`Opp. at 10-11 (showing how Oracle held that the survey was an unreliable predictor of market
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`share and how, in Visteon, the expert opinion was excluded due to a failure to apportion). Apple
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`provided no explanation for why its continued citation to the cases is appropriate and cites no new
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`cases in reply. Dr. Erdem is an indisputable expert in the field. Apple does not challenge her
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`qualifications. She has explained why her methodology is sound. While Apple prefers a different
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`survey, Apple has not actually presented any basis to exclude Dr. Erdem’s survey or opinions.
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` With respect to user awareness, Apple does not challenge Maxell’s argument that user
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`awareness is relevant because it constitutes a step in Dr. Erdem’s survey methodology. Opp. at 8-
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`9; Reply at 3. Apple merely asserts that, if the measure of relative importance is deemed irrelevant,
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`then the awareness step has no purpose and is likewise inadmissible. Reply at 3. Because the
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`measure of relative importance is relevant, the user awareness step is relevant as well.
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`C. Maxell Established that Dr. Erdem Sufficiently Described the Infringing
`Functionalities.
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`Apple’s characterization of the survey’s focus of “relative importance” being a “magical
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`cure-all for defects in Dr. Erdem’s methodology” demonstrates the problem underlying Apple’s
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`motion. Reply at 4. It is not that the relative importance focus cures defects. The relative
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`importance focus is why there are no methodological defects to begin with. Contrary to what Apple
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`urges, one cannot divorce the methodology from the purpose as one informs and controls the other.
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 8 of 11 PageID #: 25493
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`Whereas exact descriptions may be needed to test absolute importance, absolute importance was
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`not tested; relative importance was. And as Maxell explained, whether the advantage of the ’991
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`patent is applied to a pedestrian is inapposite to testing the relative importance of the advantage
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`itself. Opp. at 13-14.
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`Apple asserts that Maxell’s cases are unpersuasive because they dealt with factual disputes
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`as to whether the surveyed feature aligned with the claims whereas here there is no dispute that
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`the survey omitted the pedestrian navigation limitation. Reply at 4-5. But there is actually no such
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`distinction. In Sentius Int’l., LLC v. Microsoft Corp., C.A. 5:13-cv-00825, 2015 WL 331939, at *4
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`(N.D. Cal. Jan. 23, 2015), the Court found it sufficient where survey questions related to spell and
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`grammar check features even though the asserted patents related only to a specific aspect thereof.
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`Here, Apple does not actually argue that Dr. Erdem did not test an accused feature, just that she
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`did not describe it narrowly enough. Opp. at 13-14. In other words, it cannot be argued that Dr.
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`Erdem’s “description… var[ies] so much from what is claimed that the survey no longer ‘relate[s]
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`to any issue in the case’ and is ‘not relevant’…” Id.
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`As to the ’317 Patent, Maxell does not misrepresent its own expert’s report or provide
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`irrelevant information from it. Indeed, Maxell provided direct excerpts of Dr. Rosenberg’s report
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`in order to demonstrate the appropriateness of Dr. Erdem’s description—including a side-by-side
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`comparison of the two experts’ reports. Opp. at 14-15. Yet Apple asserts that the images from Dr.
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`Rosenberg’s report are irrelevant because Dr. Rosenberg bases his opinion on the cone of light and
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`the red arrow rather than reorientation. But the excerpted portion shows exactly the interaction
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`between the display reorientation and the cone of light and red arrow. Opp. at 15.
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`Dr. Erdem did nothing wrong here. Apple’s entire motion boils down to the fact that Apple
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`simply prefers a different survey. Apple’s motion should be denied.
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 9 of 11 PageID #: 25494
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` Dated: July 29, 2020
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`By:
`
`/s/ Jamie B. Beaber
`Geoff Culbertson
`Kelly Tidwell
`Patton, Tidwell & Culbertson, LLP
`2800 Texas Boulevard (75503)
`Post Office Box 5398
`Texarkana, TX 75505-5398
`Telephone: (903) 792-7080
`Facsimile: (903) 792-8233
`gpc@texarkanalaw.com
`kbt@texarkanalaw.com
`
`Jamie B. Beaber
`Alan M. Grimaldi
`Kfir B. Levy
`James A. Fussell, III
`William J. Barrow
`Baldine B. Paul
`Tiffany A. Miller
`Michael L. Lindinger
`Saqib J. Siddiqui
`Bryan C. Nese
`Alison T. Gelsleichter
`Clark S. Bakewell
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`agrimaldi@mayerbrown.com
`klevy@mayerbrown.com
`jfussell@mayerbrown.com
`wbarrow@mayerbrown.com
`bpaul@mayerbrown.com
`tmiller@mayerbrown.com
`mlindinger@mayerbrown.com
`ssiddiqui@mayerbrown.com
`bnese@mayerbrown.com
`agelsleichter@mayerbrown.com
`cbakewell@mayerbrown.com
`
`Robert G. Pluta
`Amanda Streff Bonner
`MAYER BROWN LLP
`71 S. Wacker Drive
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 10 of 11 PageID #: 25495
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`Chicago, IL 60606
`(312) 782-0600
`rpluta@mayerbrown.com
`asbonner@mayerbrown.com
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`Counsel for Plaintiff Maxell, Ltd.
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`Case 5:19-cv-00036-RWS Document 453 Filed 07/29/20 Page 11 of 11 PageID #: 25496
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented to
`electronic service are being served this 29th day of July 2020 with a copy of this document via the
`Court’s CM/ECF system per Local Rule CV-(a)(3).
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`/s/ Jamie B. Beaber
`Jamie B. Beaber
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