Survey of Customer Usage of Accused Products Excluded as Unreliable

The court granted defendant's motion to exclude the testimony of plaintiff's expert as to a survey "regarding consumer use of the accused . . . products." "[The expert's] survey was not constructed in a reliable manner. . . . There was no effort made in connection with [this] survey to shield participants from study goals. The survey did not take measures to adjust for response rates to balance the gender of respondents. . . . It is fundamentally flawed methodology to have asked prospective purchasers many of the questions posed that required present use of the [accused product]. . . . A survey that generates answers from respondents who have no basis to provide them is not one conducted according to accepted principles. Further, those questions, and others, e.g., 'If you had to pay extra for Wi-Fi access to your [accused phone product] to connect to Wi-Fi networks would you pay the extra amount?,' seek to value features that go beyond those circumscribed by the asserted claims."

NetAirus Technologies, LLC v. Apple Inc., 2-10-cv-03257 (CACD October 23, 2013, Order) (Kronstadt, J.)