Sentius
Int’l, LLC v. Microsoft Corp., No. 5:13-cv-00825, 2015 WL 331939 (N.D. Cal.
Jan. 23, 2015) (magistrate judge)
A little
different today: this is a survey in a patent case trying to determine the
value of a patented feature to consumers.
Despite Microsoft’s challenges, the court allows the survey, finding its
flaws go merely to weight and not admissibility. Sentius’s expert Wecker surveyed customers
for preferences for spelling and grammar checking features in the accused
products.
Surveys
conducted according to accepted principles will ordinarily be sufficiently
reliable under Daubert to be
admitted. “Unlike novel scientific
theories, a jury should be able to determine whether asserted technical
deficiencies undermine a survey’s probative value.” Once the survey is
admitted, “issues of methodology, survey design, reliability, the experience
and reputation of the expert, critique of conclusions, and the like go to the
weight of the survey rather than its admissibility.”
The survey
asked customers about their preferences for the accused “check spelling and
grammar errors as you type” (ed. note: yuck) features compared to alternative
user-initiated spell- and grammar-checkers which Sentius’s technical expert
identified as the best noninfringing alternatives. Wecker asked direct, open-ended questions
about consumers’ willingness to pay, but, recognizing that responses might
overstate WTP, he adjusted his estimates by a “calibration factor.”
The survey
asked respondents who had used and purchased an Office product and used the
background or user-initiated features to suppose that Office included the
user-initiated but not the check as you type options. About 14.7% of spell checker respondents said
they wouldn’t have bought the accused products without the background spell
checker, and 14.8% for the grammar checker.
Wecker concluded that about 11.2% wouldn’t have bought the products
without the accused features.
The court
agreed that there were “significant concerns” about the structure of the survey
and the way in which it was conducted, but these concerns went to weight rather
than admissibility. The survey questions
were adequately tied to the subject matter of the asserted patents, and framing
of questions is generally an issue of weight.
The description of the features in the survey did not vary so much from
the patent that the survey failed to relate to any issue in the case. Microsoft
argued that the questions didn’t distinguish between the patented and
unpatented features of the background spell/grammar checkers—Sentius only
claimed that certain subfeatures infringed.
But this wasn’t enough variation to make the survey unrelated to the
case. Microsoft also argued that Wecker
didn’t ask questions about noninfringing alternatives that could implement the
accused aspects of the background features.
Microsoft did offer evidence that it could have implemented several
noninfringing alternatives, but Sentius could at least argue that its choice of
comparator was correct.
In
addition, the survey was based on reliable methodologies. True, it asked respondents only about their
preferences for the two accused features when the accused products include
thousands of features, and thus didn’t accurately capture the value of the
claimed inventions, but again this goes to weight. Direct questioning was a generally accepted
methodology even if it may have caused respondents to focus unduly on the
accused features; a conjoint survey was not required for admissibility. Using an “omnibus” survey asking a bunch of
other unrelated questions likely impacted the quality of the survey, but that’s
again weight.
Wecker’s
use of a calibration factor to adjust the bias in his survey was also
reliable. He calculated his calibration
factor based on a meta-analysis of 29 experimental studies. Microsoft argued
that he didn’t show that this approach was generally accepted, but Microsoft
failed to show that the presence of hypothetical bias/overvaluation of WTP was
a reason to exclude the survey. Given
that, an expert’s adjustment for that bias couldn’t be a reason to exclude a
survey either.
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