Survey Based on Rejected Claim Construction Renders Damages Expert’s Opinion Unreliable​

The court granted defendant's motion to exclude the testimony of plaintiff's survey expert regarding one of the patents-in-suit, and all related damages estimates, as unreliable because it was based on a rejected claim construction. "[The expert's] survey for [one] patent measured the value attributed to manual or automatic 'content sharing,' which [he] described as a '[m]ethod of transferring songs, movies, and applications across devices . . . owned by the user.'. . . [I]t appears that [his] questions for [that] patent reflect the claim construction [plaintiff] initially proposed. . . . [which] was rejected in favor of the narrower ‘enabling or modifying communications capabilities.’ In light of that construction, ‘provisioning’ features on a user's device bears no reasonable connection to sharing content across devices. [Plaintiff] suggests that [his] survey was intended to measure the value attributed to automatically provisioning all of one's devices after manually provisioning a single device. But this would still make the survey inaccurate, as the benefit of the invention was tied to remote provisioning, not automatic provisioning. . . . The combined result is a survey question – and survey responses – targeted at an invention other than the one at issue in this litigation. This is a problem of admissibility rather than weight. The . . . survey results must therefore be excluded, along with all damages estimates hinging on those survey results.”

Unwired Planet, LLC v. Apple, Inc., 3-13-cv-04134 (CAND February 14, 2017, Order) (Chhabria, USDJ)