Presenting a live 90-minute webinar with interactive Q&A Leveraging Surveys in Patent Litigation: Demonstrating Consumer Perception, Avoiding Errors That Impact Damages Best Practices for Developing, Presenting and Challenging Surveys THURSDAY, JULY 10, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Chris Larus, Partner, Robins Kaplan Miller & Ciresi , Minneapolis Bryan J. Mechell, Robins Kaplan Miller & Ciresi , Minneapolis Dr. Shankar Iyer, Vice President, Cornerstone Research , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Using Surveys and Other Quantitative Analyses In Patent Litigation Developing, Presenting and Challenging Surveys and Regression Analyses July 10, 2014
“Determining a fair and reasonable royalty is often . . . a difficult chore, seeming often to involve more the talents of a conjurer than those of a judge.” ResQNet.com v. Lansa , 594 F.3d 860 (Fed. Cir. 2010) 6
Using Surveys and Other Quantitative Analyses In Patent Litigation OVERVIEW 1. The Evolving Patent Damages Landscape 2. Economic Analyses Applicable to Patent Valuation 3. Recent Uses of Economic Analyses in Patent Litigation: Effective Uses and Rejected Attempts 4. Avoiding Common Challenges to Economic Analyses 7
Using Surveys and Other Quantitative Analyses In Patent Litigation PATENT DAMAGES LANDSCAPE: INCREASED SCRUTINY 1. Damage awards in patent infringement cases must be supported by sound economic theory and tied to the patented invention’s “footprint in the marketplace.” Uniloc (Fed. Cir. 2011) 2. Damage awards have been rejected if based on “speculative and unreliable evidence divorced from proof of economic harm linked to the claimed invention.” ResQNet (Fed. Cir. 2010) 8
Using Surveys and Other Quantitative Analyses In Patent Litigation PATENT DAMAGES LANDSCAPE: INCREASED SCRUTINY IP Innovation v. Uniloc v. ResQNet.com v. i4i Ltd. P’ship v. Red Hat : Microsoft: Lansa : Microsoft : Damages based on the Expert testimony as Consumer survey entire market value of the Damages must to reasonably demonstrating real- accused product are reflect “economic royalty “must world consumer appropriate only where reality.” carefully tie proof of behavior provided the patented feature creates the “basis for damages to the evidence to consumer demand” or claimed invention’s demonstrate an “substantially creates the footprint in the appropriate royalty value of the component parts.” marketplace.” base. 9
Using Surveys and Other Quantitative Analyses In Patent Litigation PATENT DAMAGES LANDSCAPE: INCREASED SCRUTINY Oracle v. Google: Apple v. TVI v. Sony: NetAirus v. Apple: Consumer surveys Survey deemed Survey results Motorola: not “inherently “fundamentally unreliable where Damages experts’ unreliable” but can flawed and sought to value testimony become so when unreliable” but something “significantly excluded for expert “artificially court ruled criticism broader than the lacking forced” participants more appropriate claimed invention “intellectual rigor” or data to desired for jury without adequate – case dismissed outcome. determination. justification.” with prejudice. 10
Using Surveys and Other Quantitative Analyses In Patent Litigation PATENT DAMAGES LANDSCAPE: INCREASED SCRUTINY 1. Detailed economic analyses can help isolate and demonstrate patent value, but must be tied to the patented technology. 2. Consumer surveys and regressions are increasingly used to quantify the economic value of the invention in support of a reasonable royalty rate analysis. 11
Using Surveys and Other Quantitative Analyses In Patent Litigation ECONOMIC ANALYSES APPLICABLE TO PATENT VALUATION 1. Consumer Surveys A. Ranking-Based Conjoint Analysis B. Choice-Based Conjoint Analysis C. Direct Queries 2. Regression Analysis A. Price Premium / Hedonic Analysis B. Market Share Premium C. Merger Analysis 12
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: BACKGROUND • Consumer survey evidence can demonstrate the evidentiary link between the patented invention and consumer demand. • Consumer survey evidence must be tied to the patented technology. 13
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: TYPES OF SURVEY ANALYSES Ranking-Based Choice-Based Direct Queries Conjoint Analysis Conjoint Analysis Methodology Allows ranking of Presents groups of Queries directed at products within a products to choose patented group feature/demand Outcome Relative comparison Relative comparison of Demand for patented of consumer consumer preferences feature and relative preferences for for product features & strength of any such product features & combinations demand combinations Details Participants can rank Participants must make Allows for multiple choices. Potential choices. choice, yes/no, issues if participants ranges, rankings. oversimplify. Must be carefully crafted to avoid bias 14
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: RANKING-BASED CONJOINT ANALYSIS • Ranking-Based Conjoint Analysis – 4 step process 1. Identify product attributes. 2. Conduct a survey where respondents rank the importance of specific attributes in products. 3. Analyze data using statistical analysis to determine relationship between rankings and attributes. 4. Conduct a simulation in which the results of step 3 determine additional value of the target attribute. 15
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: RANKING-BASED CONJOINT ANALYSIS • Example: 16
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: CHOICE-BASED CONJOINT ANALYSIS • Choice-Based Conjoint Analysis – 4 step process 1. Identify product attributes. 2. Conduct a survey where respondents choose among products with different combinations of different attributes. 3. Analyze data using statistical analysis to determine relationship between choices and attributes. 4. Conduct a simulation in which the results of step 3 determine additional value of the target attribute. 17
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: CHOICE-BASED CONJOINT ANALYSIS • Example: Appendix A, Survey Expert Report filed in Convolve v. Dell, Inc. (E.D. Tex. 2011). 18
Using Surveys and Other Quantitative Analyses In Patent Litigation CONSUMER SURVEYS: CHOICE-BASED CONJOINT ANALYSIS • Example: Apple v. Samsung (N.D. Cal. Feb. 25, 2014) • Choice-based conjoint model allowed where respondents chose which of four hypothetical smartphones they preferred. (Dr. Hauser, Apple’s survey expert) 1. The use of conjoint survey to quantify decreased demand is supported by literature. 2. Studies have demonstrated that conjoint surveys are able to quantify consumer demand with respect to complex products. 3. Dr. Hauser’s approach has peer support. 4. Description of the claim was not overbroad. 19
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