Tuesday, May 3, 2011

Consumer Survey Evidence Not Tied to Purported Advantages of Patented Invention Must be Excluded

The court granted defendants' motion to exclude expert testimony on consumer surveys that "quantify the estimated value of consumer preference for internal antennas in cell phones." "While Plaintiff claims that its experts contend that the patents-in-suit are 'fundamental' to internal antennas, the surveys are not tied to the alleged advantageous technical characteristics of the patents-in-suit. Put another way, the surveys do not measure how consumers value the purported advantages provided by Plaintiff’s technology. . . . [Such evidence] confuses the issues and must be excluded." However, the court cautioned that "survey evidence demonstrating that consumers generally prefer cell phones with internal versus external antennas may be relevant if Defendants open the door to such a comparison. For example, if Defendants contend that a particular external antenna is an acceptable noninfringing alternative, evidence of broad consumer demand for internal antennas may rebut the acceptability of external antenna as an alternative."

Fractus, S.A. v. Samsung Electronics Co., Ltd., et. al., 6-09-cv-00203 (TXED April 29, 2011, Order) (Love, M.J.)

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