Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 1 of 17 PageID #: 12101
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`LG ELECTRONICS, INC.,
`LG ELECTRONICS USA, INC. and
`LG ELECTRONICS MOBILECOMM U.S.A.,
`INC.,
`
`C.A. No. 12-1595-LPS
`
`Original Version Filed: April 6, 2021
`
`Public Version Filed: April 13, 2021
`
`Defendants.
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`BLACKBERRY LIMITED and
`BLACKBERRY CORPORATION,
`
`Defendants.
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`MOTOROLA MOBILITY LLC
`f/k/a MOTOROLA MOBILITY, INC.,
`
`Defendant.
`
`C.A. No. 12-1596-LPS
`
`Original Version Filed: April 6, 2021
`
`Public Version Filed: April 13, 2021
`
`C.A. No. 12-1597-LPS
`
`Original Version Filed: April 6, 2021
`
`Public Version Filed: April 13, 2021
`
`C.A. No. 12-1601-LPS
`
`Original Version Filed: April 6, 2021
`
`Public Version Filed: April 13, 2021
`
`

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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 2 of 17 PageID #: 12102
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`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`SONY MOBILE COMMUNICATIONS (USA)
`INC. f/k/a SONY ERICSSON MOBILE
`COMMUNICATIONS (USA) INC.,
`SONY CORPORATION and
`SONY CORPORATION OF AMERICA,
`
`C.A. No. 12-1602-LPS
`
`Original Version Filed: April 6, 2021
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`Public Version Filed: April 13, 2021
`
`Defendants.
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`OATH HOLDINGS INC., and
`OATH INC.,
`
`Defendants.
`
`C.A. No. 13-919-LPS
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`Original Version Filed: April 6, 2021
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`Public Version Filed: April 13, 2021
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`C.A. No. 13-920-LPS
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`Original Version Filed: April 6, 2021
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`Public Version Filed: April 13, 2021
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`ARENDI’S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS’ JOINT
`MOTION TO EXCLUDE LAURENTIUS MARAIS’ OPINIONS AND TESTIMONY
`UNDER FED. R. EVID. 702 AND DAUBERT1
`
`1 Plaintiff has filed an identical Answering Brief in Opposition to Defendants’ Joint Motion to
`Exclude Laurentius Marais’ Opinions and Testimony Under Fed. R. Evid. 702 and Daubert in
`each of the respective cases.
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`

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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 3 of 17 PageID #: 12103
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`
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`SMITH, KATZENSTEIN & JENKINS LLP
`Neal C. Belgam (No. 2721)
`Eve H. Ormerod (No. 5369)
`Julie O’Dell (No. 6191)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`Tel: (302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
`jdodell@skjlaw.com
`
`Attorneys for Plaintiff Arendi S.A.R.L.
`
`Dated: April 6, 2021
`
`
`
`
`
`Of Counsel:
`SUSMAN GODFREY LLP
`
`Seth Ard (pro hac vice)
`Max Straus (pro hac vice)
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`sard@susmangodfrey.com
`mstraus@susmangodfrey.com
`
`John Lahad (pro hac vice)
`Emi Lawson (pro hac vice)
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`jlahad@susmangodfrey.com
`elawson@susmangodfrey.com
`
`Kalpana Srinivasan (pro hac vice)
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
`
`Kemper Diehl (pro hac vice)
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
` kdiehl@susmangodfrey.com
`
`
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`

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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 4 of 17 PageID #: 12104
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`TABLE OF CONTENTS
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`Page
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`STATEMENT OF FACTS ..............................................................................................................1 
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`NATURE AND STAGE OF PROCEEDINGS ...............................................................................4 
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`ARGUMENT ...................................................................................................................................4 
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`I.      Defendants Provide No Legal Basis to Support Exclusion. .........................................5 
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`II.     Defendants’ Arguments go to Weight not Admissibility. ............................................9 
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`CONCLUSION ..............................................................................................................................11 
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`i
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 5 of 17 PageID #: 12105
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`
`
`Cases
`
`
`
`TABLE OF AUTHORITIES
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`Page(s)
`
`Citizens Fin. Grp., Inc. v. Citizens Nat’l Bank of Evans City,
`383 F.3d 110 (3d Cir. 2004).......................................................................................................4
`
`Fractus, S.A. v. Samsung,
`No. 6:09-203-LED-JDL, 2011 WL 7563820 (E.D. Tex. Apr. 29, 2011) ..............................7, 8
`
`GlaxoSmithKline LLC v. Glenmark Pharm. Inc.,
`No. 14-877-LPS-CJB, 2017 WL 8948975 (D. Del. May 30, 2017), report and
`recommendation adopted, No. CV 14-877-LPS-CJB, 2017 WL 2536468 (D.
`Del. June 9, 2017) ..................................................................................................................4, 9
`
`Hartle v. FirstEnergy Generation Corp.,
`No. 08-1019, 2014 WL 1317702 (W.D. Pa. Mar. 31, 2014) ...............................................9, 10
`
`Microsoft Corp. v. Motorola, Inc.,
`904 F. Supp. 2d 1109 (W.D. Wash. 2012) ...........................................................................4, 10
`
`Parallel Networks Licensing, LLC v. Microsoft Corp.,
`No. 13-2073 (KAJ), 2017 WL 11557655 (D. Del. Feb. 22, 2017) aff’d by
`Parallel Networks Licensing, LLC v. Microsoft Corp., 777 F. App’x 489 (Fed.
`Cir. 2019) ...........................................................................................................................4, 5, 6
`
`Visteon Glob. Techs., Inc. v. Garmin Int’l, Inc.,
`No. 10-10578, 2016 WL 6123526 (E.D. Mich. Oct. 20, 2016) .................................................6
`
`Vita-Mix Corp. v. Basic Holding, Inc.,
`581 F.3d 1317 (Fed. Cir. 2009)......................................................................................5, 6, 7, 9
`
`Other Authorities
`
`Fed. R. Evid. 702 .............................................................................................................................1
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`ii
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 6 of 17 PageID #: 12106
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`Defendants premise their entire motion to exclude Dr. Marais’ survey opinions on the
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`ground that a survey evaluating the consumer value of an invention must describe each and every
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`element of asserted claims. Defendants do not cite a single case that supports this proposition.
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`Because they cannot. To the contrary, Dr. Marais’ survey opinions contain all necessary
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`components to pass muster under Daubert and Fed. R. Evid. 702, namely 1) the survey content is
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`relevant to the asserted claims, 2) the survey identifies the specific benefits of the invention, and
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`3) the survey-based opinions do not exceed their purview by attempting to assert an ultimate
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`conclusion on damages. Furthermore, Arendi’s damages expert does not rely on the survey to reach
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`his ultimate conclusions about a reasonable royalty, nor do Arendi’s infringement experts rely on
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`the survey to reach their ultimate conclusions about infringement.
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`Defendants’ gripe boils down to a disagreement over which claims are expressly described
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`in the survey or the accuracy of language used to describe the benefits of the claimed invention.
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`These are factual disputes that go to the applicability of the survey’s results, not its methodology,
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`i.e., at best Defendants’ criticism is one related to weight—not admissibility—of Dr. Marais’
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`opinions and must be resolved by the jury.
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`STATEMENT OF FACTS
`Drs. Laurentius Marais and William Wecker conducted a consumer survey (the
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`“Marais-Wecker Survey” or “Survey”)2 to assess the “importance of the [alleged] patented ability
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`. . . to purchasers of Apple iPhones [and] Defendant Android Smartphones[,]” and in particular,
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`“[t]he overall average valuation of the patented ability among smartphone purchasers.” Defs.’
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`2 Drs. Marais and Wecker co-authored the expert report, but only Dr. Marais will serve as a
`testifying expert.
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`1
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 7 of 17 PageID #: 12107
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`Ex. A [Marais Opening Rpt.], at ¶9, 11. In preparation for fielding the Survey, Drs. Marais and
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`
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`Wecker tested their questionnaire by conducting an in-house pre-test of the sample questions and
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`then a pilot survey of over 1,000 respondents. Defs.’ Ex. A, at ¶¶13,16. The main Survey then
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`sampled over 3,000 U.S. adults stratified and weighted by age, region, education, and race to
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`ensure a representative population. Id., at ¶16. Initial Survey questions filtered out respondents
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`who were not a part of the target population, and quality control questions throughout the Survey
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`filtered out respondents who were not diligently answering the Survey questions. Id. at ¶14,
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`Attach H.
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`The substantive portion of the Survey asked respondents to answer a series of questions
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`about their willingness to pay extra for a new phone that included the claimed invention and the
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`discount they would require to purchase one of the Defendants’ phones without the claimed
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`invention. The invention was described to Survey respondents with written language and images
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`as follows3:
`
`The next few questions are about the ability of the new (not used) Android
`smartphone you purchased most recently to automatically recognize
`and underline in text displayed by certain apps (such as Messages,
`Gmail, Keep Notes, and Calendar) information that could be a
`meaningful input to another app within your smartphone, and to quickly
`activate the relevant function of the other app when you tap on the
`underlined information. For example,
` when this smartphone displays a telephone number [or an email
`address] in a text message, email, note, or calendar entry, it
`automatically underlines that telephone number [or the email
`address], and you can tap on the underlined telephone number to
`call it [or tap on that underlined email address to create a new email
`addressed to it (and also show a name if listed in your Contacts).; . . .
` when this smartphone displays a street address in a text message,
`email, note, or calendar entry, it automatically underlines the street
`
`
`3 The survey provided an analogous question, with a corresponding image, for respondents who
`indicated their prior phone had been an Apple iPhone. See Defs’ Ex. A., at Chart F.1.
`2
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 8 of 17 PageID #: 12108
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`
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`address, and you can tap on that underlined street address to show
`that address on a map.
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`Based on the results of the Survey, Drs. Marais and Wecker estimated that “[t]he average
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`valuation to Defendant Android Smartphone [and Apple iPhone] purchasers of the [alleged]
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`patented ability” was $12.61 and $9.08 respectively. See D.I. 269 in 12-1595, Ex. A, at Table 5;
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`Chart F.8; Chart F.4.
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`Arendi’s damages expert, Roy Weinstein, referenced these findings in his damages
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`report in support of his reasonable royalty rate calculations. See Arendi’s Answer to Defs.’ Mtn.
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`to Exclude Weinstein Testimony and Opinions. However, Mr. Weinstein does not rely on the
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`Survey results as the basis for his ultimate opinion on a reasonable royalty, and it serves only as
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`a useful benchmark. Similarly, while both Arendi infringement experts, Drs. John Levy and
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`Trevor Smedley, respond to technical criticism of the Marais-Wecker Survey, neither relies on
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`the results of the Survey as the basis for his ultimate opinions on infringement. E.g. Lawson
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`3
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 9 of 17 PageID #: 12109
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`Google Decl., Ex. 1, [Smedley Second Google Rpt.], at ¶¶283, 311–313; Lawson BlackBerry
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`Decl., 1. TK, [Levy Second BlackBerry Report], at ¶¶111–114.
`
`NATURE AND STAGE OF PROCEEDINGS
`Arendi filed suits against Defendants for infringing claims 1, 8, 23, and 30 of U.S. Patent
`
`No. 7,917,843 (the “’843 Patent”) in 2012 and 2013. Following a stay for inter partes review, the
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`parties completed fact discovery in December 2019 and expert discovery in January 2021. D.I.
`
`155, 197. 4
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`ARGUMENT
`“Courts generally accept survey evidence that is reliable.” GlaxoSmithKline LLC v.
`
`Glenmark Pharm. Inc., No. 14-877-LPS-CJB, 2017 WL 8948975, at *8 (D. Del. May 30,
`
`2017), report and recommendation adopted, No. CV 14-877-LPS-CJB, 2017 WL 2536468 (D.
`
`Del. June 9, 2017). In the Third Circuit, a survey may be properly excluded only where its
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`“methodology was fundamentally flawed,” whereas “mere technical unreliability goes to the
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`weight accorded a survey, not its admissibility.” Citizens Fin. Grp., Inc. v. Citizens Nat’l Bank of
`
`Evans City, 383 F.3d 110, 121 (3d Cir. 2004). Such technical inadequacies may include “the format
`
`of the questions or the manner in which it was taken” and “bear on the weight of the evidence, not
`
`its admissibility.” Microsoft Corp. v. Motorola, Inc., 904 F. Supp. 2d 1109, 1120 (W.D. Wash.
`
`2012) (quoting Fortune Dynamic v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025,
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`1038 (9th Cir. 2010)) (emphasis added).
`
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`4 All docket citations are to Arendi v. LG Electronics, Inc., No. 12-1595, unless otherwise
`specified.
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`4
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 10 of 17 PageID #: 12110
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`I.
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`
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`Defendants Provide No Legal Basis to Support Exclusion.
`Defendants contend that because the Marais-Wecker Survey does not ask respondents
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`about alleged “under-the-hood” features of the claimed invention, it is not reliable. D.I. 267, at 2.
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`This is a false premise.
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`Defendants do not offer any legal authority that supports their argument that the Marais-
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`Wecker Survey is unreliable to the extent it does not ask consumers about a claim limitation that
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`is not part of the consumer experience.5 Defendants cite Parallel Networks for the proposition that
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`“Dr. Marais has no basis to use the survey results as a proxy for the value of the claimed
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`combination [of claim limitations].” D.I. 267, at 9–10. But Parallel Networks is inapposite because
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`the survey at issue there was offered as independent proof of infringement of the patents–not as
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`evidence of the consumer value of the claimed invention. Parallel Networks Licensing, LLC v.
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`Microsoft Corp., No. 13-2073 (KAJ), 2017 WL 11557655, at *2 (D. Del. Feb. 22, 2017) (finding
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`“[the survey] does not support Parallel Networks’ assertion that survey respondents used the
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`accused products in an infringing manner”) aff’d by Parallel Networks Licensing, LLC v. Microsoft
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`Corp., 777 F. App’x 489, 492 (Fed. Cir. 2019). The court in Parallel Networks excluded the survey
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`on the grounds that it “failed to address even a single limitation of the asserted claims” and “the
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`only evidence tying the survey results to the asserted claims” was [the expert’s] naked assertion
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`that he “found sufficient evidence that [the defendant and its] customers directly infringe the
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`asserted claims.” Id. In contrast, Arendi’s technical experts do not rely on the Marais-Wecker
`
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`5 Defendants repeatedly claim that Dr. Marais “admitted” at his deposition that “the Survey was
`not coextensive with the asserted claims” and “consumers do not care about the claimed
`combination,” (D.I. 267 at 7, 9), but Defendants mischaracterize the testimony. More
`fundamentally, Defendants’ argument rests on a false and unsupported premise that, in order to
`inform valid expert opinions, a consumer survey about the perceived benefits of a claimed
`invention must identify each and every patent claim limitation verbatim.
`5
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 11 of 17 PageID #: 12111
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`Survey to prove infringement, and it is undisputed that the survey’s prompt references specific
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`
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`limitations of the asserted claims. See 12-1595, D.I. 267.6 Parallel Networks does not support
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`Defendants’ argument because it simply does not stand for the proposition that every claim
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`limitation must be presented in a survey in order for the survey’s results to provide evidence of the
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`value of an invention.
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`Defendants’ citation to Vita-Mix is similarly incongruous as it also centers on the
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`admissibility of survey opinions offered as evidence of infringement. To the extent the Federal
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`Circuit’s reasoning in Vita-Mix is relevant to the facts of this case, it supports the admissibility of
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`the Marais-Wecker Survey. In Vita-Mix, the plaintiff commissioned a survey to supplement its
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`technical expert’s infringement opinion that at least some customers used the product in an
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`infringing manner. Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1325 (Fed. Cir. 2009).
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`The district court excluded the survey opinions on the grounds the expert “had no opinions whether
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`any of the disputed claimed limitations were performed during his survey,” and therefore, his
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`testimony could not establish whether infringement actually occurred and was not relevant. Id.
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`Reversing the district court, the Federal Circuit held that “[i]t is not too great an analytical leap for
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`the jury to consider both [survey and technical] experts’ testimonies and conclude that
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`infringement actually occurs in at least a small percentage of customer use.” Id. at 1326.
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`By making clear that the jury could consider the combined testimony of the plaintiff’s
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`survey and technical experts in determining infringement, regardless of the limitations of the
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`survey opinions, the Federal Circuit’s holding rebuts Defendants’ argument that the Marais-
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`Wecker Survey must itself be “commensurate or coextensive with the asserted independent
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`6Hereinafter, all “D.I.” citations will be to Arendi v. LG Electronics, Case No. 12-1595.
`6
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 12 of 17 PageID #: 12112
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`claims” to be admissible. D.I. 267, at 11. Instead, Vita-Mix confirms that surveys which
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`
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`supplement another expert’s opinions are admissible even if they do not address every claim
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`limitation. See Parallel Networks, 2017 WL 11557655, at *3 n.6 (“In Vita-Mix, the Federal Circuit
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`concluded that a survey was admissible, despite the fact that the survey failed to speak to every
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`limitation of the asserted claims. What distinguishes this case from Vita-Mix is that the plaintiff
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`in Vita-Mix supplemented its survey with additional reliable evidence that addressed the claim
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`limitations not considered by the survey. There is no such additional evidence here.”) (citations
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`omitted); see also Visteon Glob. Techs., Inc. v. Garmin Int’l, Inc., No. 10-10578, 2016 WL
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`6123526, at *4 (E.D. Mich. Oct. 20, 2016) (denying a motion to exclude a usage survey where the
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`survey was sufficiently tied to the issue of usage “given [plaintiff’s] proffer of additional related
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`expert evidence”). Here, the Marais--Wecker Survey serves the same kind of supporting role
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`described in Vita-Mix. Mr. Weinstein independently provides sufficient evidence to support his
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`reasonable royalty conclusions, and looks to the Marais-Wecker Survey as confirmation of the
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`reasonableness of his per-unit royalty rate. Because the Marais-Wecker Survey does not stand
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`alone as evidence of any element of Arendi’s cause of action, and instead merely supplements
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`Arendi’s other expert opinions, Defendants’ claim that the survey does not identify all claim
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`limitations (which Arendi does not concede) is not a basis for exclusion.
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`Separately, as a consequence of Defendants’ heavy reliance on cases related to
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`infringement surveys they have created a false narrative that a valuation survey must expressly
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`“educate respondents” about every claim limitation, D.I. 267 at 5, in order for the survey to
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`sufficiently capture the accused invention. Under Vita-Mix, the Survey does not have to teach
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`every limitation. It is clear that, when taken as a whole, the text and images of the Survey
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`7
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 13 of 17 PageID #: 12113
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`adequately capture the benefits of the claimed invention.
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`Finally, Defendants point to Fractus, which is also off point. In Fractus, plaintiffs
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`commissioned two surveys to measure the value of “incorporating internal antennas in cell phones
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`in place of external antennas” and “the relative importance of internal antennas in cell phones to
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`consumers.” Fractus, S.A. v. Samsung, No. 09-203-LED-JDL, 2011 WL 7563820, at *1 (E.D. Tex.
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`Apr. 29, 2011). The court found that “the surveys do not measure the purported advantages
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`provided by Plaintiff’s technology . . . but merely measure the perceived consumer value of cell
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`phones with any internal antennas.” Id. Plaintiff’s failure to tie the survey “to the advantageous
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`technical characteristics of the patents-in-suit” led the court to conclude that the survey posed the
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`risk of “confusing the issue.” Id. In contrast, the Marais-Wecker Survey does not risk this
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`confusion because unlike the general topics addressed in the Fractus surveys, here, the Marais-
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`Wecker Survey identifies the specific benefits gained from the use of the claimed invention:
`
`Suppose that at the time you purchased this Android smartphone, it did not have
`the ability to automatically recognize and underline in text displayed by certain
`apps (such as Messages, Gmail, Keep Notes, and Calendar) information that could
`be a meaningful input to another app within your smartphone (such as telephone
`numbers, email addresses, and street addresses), and to quickly activate the relevant
`function of the other app when you tap on the underlined information. (Instead,
`you would first copy the information in one app, switch apps, and then paste the
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`7 For clarity, these exhibits are only being offered in the cases to which the expert reports
`correspond.
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`8
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 14 of 17 PageID #: 12114
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`information in the second app.) And it would have cost the same as you paid for
`it. In that scenario, would you have purchased that Android smartphone?
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`See D.I. 269, Defs.’ Ex. A, at Chart F.7 (emphasis added).8 By describing the specific benefits of
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`the claimed invention in the ’843 Patent, Dr. Marais’ survey opinions will assist the jury in
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`assessing the value of the invention to consumers.
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`Accordingly, Defendants have failed to identify any legal authority that supports the
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`exclusion of the Marais-Wecker Survey.9
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`II.
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`Defendants’ Arguments go to Weight not Admissibility.
`Not only have Defendants failed to identify a legal basis for excluding Dr. Marais’
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`testimony, the case law is clear that any purported flaws of the Marais-Wecker Survey are technical
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`matters that go to weight, not admissibility.
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`For example, in GlaxoSmithKline v. Glenmark, the defendant argued, in part, that the
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`plaintiff’s survey should be excluded because “the survey does not match the critical facts of the
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`8 The equivalent iPhone question reads:
`
`
`Suppose that at the time you purchased this Apple iPhone, it did not have the ability
`to automatically recognize and underline in text displayed by certain apps (such as
`Messages, Mail, Notes, and Calendar) information that could be a meaningful input
`to another app within your smartphone (such as telephone numbers, street
`addresses, dates, and tracking numbers), and to quickly activate the relevant
`function of the other app when you tap on the underlined information. (Instead, you
`would first copy the information in one app, switch apps, and then paste the
`information in the second app.) And it would have cost the same as you paid for it.
`In that scenario, would you have purchased that Apple iPhone?
`
` 9
`
` Defendant BlackBerry also moves to exclude Dr. Marais’ survey opinions on the basis that the
`survey does not include BlackBerry users. D.I. 267 at 12. Because Dr. Marais has offered no
`opinions with respect to BlackBerry, there is nothing to exclude. To the extent BlackBerry disputes
`other experts’ references to the Marais-Wecker Survey in the BlackBerry matter, this motion is an
`inappropriate vehicle to address those disputes because BlackBerry’s issue is not with the
`reliability of the Marais-Wecker Survey or Dr. Marais’ opinions, but the opinions of other experts.
`9
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`case” because, among other things, the survey did not provide respondents with the Court’s
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`construction of the claim term “congestive heart failure.” GlaxoSmithKline LLC v. Glenmark
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`Pharm. Inc., No. CV 14-877-LPS-CJB, 2017 WL 8948975, at *8–9 (D. Del. May 30, 2017). The
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`Court rejected this criticism, citing evidence that the claim construction order was similar to the
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`accepted medical meaning and finding that to the extent the claim construction meaning was
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`broader than was presented in the survey, the issue should go to the jury. Id. at *9. Defendants here
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`advance a similar argument. They contend the absence of claim language about “under the hood
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`features” in the Survey questionnaire means the Survey does not capture the value of the claimed
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`invention. D.I. 267, at 10. But the Survey adequately conveys the benefits derived from the
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`invention; it need not recite every claim element in order to assist the jury’s understanding of the
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`value of the invention. See Vita-Mix, 581 F.3d, at 1325.
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`In Hartle, the defendant moved to exclude the use of a survey on the basis the “survey
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`questions are inaccurate and misleading, the questionnaires were not appropriately pretested, the
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`responses evince confusion by respondents, the respondents were not within the proper universe
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`and not representative, and [the expert’s] statistical analysis was flawed.” Hartle v. FirstEnergy
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`Generation Corp., No. 08-1019, 2014 WL 1317702, at *6 (W.D. Pa. Mar. 31, 2014). Following
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`Third Circuit precedent, the court held that “most of these flaws are of a technical nature and affect
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`the weight of the testimony,” and only excluded the survey on the basis that the survey questions
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`contained facts wholly unrelated to the subject it was intended to evaluate. Id. (quoting Citizens
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`Fin. Grp., Inc. v. Citizens Nat’l Bank of Evans City, 383 F.3d 110, 121 (3d Cir. 2004)). Here, it is
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`undisputed that the Marais-Wecker Survey does not—it asks respondents about the features that
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`practice the claimed invention. Because the Marais-Wecker Survey does not suffer from that flaw,
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 16 of 17 PageID #: 12116
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`which was the basis for exclusion in that case, all other disputes fall under the umbrella of alleged
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`“flaws of a technical nature” that only go to the weight of the opinions. See also Microsoft, 904 F.
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`Supp. at 1120 (denying defendant’s motion to exclude an expert survey that was alleged to have
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`an unreliable questionnaire and finding that “technical inadequacies in a survey, including the
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`format of the questions or the manner in which it was taken, bear on the weight of the evidence,
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`not its admissibility.”) (emphasis added).
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`CONCLUSION
`For the foregoing reasons, Arendi respectfully requests that Defendants’ motion to exclude
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`the opinions and testimony of Dr. Marais be denied.
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`Of Counsel:
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`Seth Ard
`Beatrice Franklin
`Max Straus
`SUSMAN GODFREY, LLP
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`sard@susmangodfrey.com
`bfranklin@susmangodfrey.com
`mstraus@susmangodfrey.com
`
`John Lahad
`Ibituroko-Emi Lawson
`Burton DeWitt
`Robert Travis Korman
`Brenda Adimora
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`jlahad@susmangodfrey.com
`elawson@susmangodfrey.com
`bdewitt@susmangodfrey.com
`tkorman@susmangodfrey.com
`badimora@susmangodfrey.com
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`SMITH, KATZENSTEIN & JENKINS LLP
`
`/s/ Eve H. Ormerod
`Neal C. Belgam (No. 2721)
`Eve H. Ormerod (No. 5369)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
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`Attorneys for Plaintiff Arendi S.A.R.L.
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`Case 1:13-cv-00920-LPS Document 288 Filed 04/13/21 Page 17 of 17 PageID #: 12117
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`Kalpana Srinivasan
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`ksrinivasan@susmangodfrey.com
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`Kemper Diehl
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101-3000
`kdiehl@susmangodfrey.com
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`Dated: April 6, 2021
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