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Consumer Surveys in Patent Cases

In a recent case in the Eastern District of Texas, the district court addressed the admissibility of a consumer survey to show demand for the patented features in accused products. The district court rejected plaintiff’s consumer surveys and granted the defendants’ motion to exclude plaintiff’s survey experts because the surveys did not measure the purported advantages of plaintiff’s technology.

The surveys measured whether consumers valued incorporating internal antennas in cell phones in place of external antennas. The problem with these surveys, however, was that plaintiff did not invent–and the patents did not claim–internal antennas for cell phones. Instead, the patents were directed only to one type of internal antenna that had increase advantages over other internal antennas and external antennas because of multiband functionality and reduced size. Thus, the surveys did not measure the value of plaintiff’s technology. “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.”

The district court found that therefore the surveys confused the issues and had to be excluded. The district court did not note, however, that if the defendants opened the door, particularly if the defendants contended that external antennae is an acceptable noninfringing alternative. “[S]urvey 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.”

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As the Federal Circuit takes a closer look at damage awards in patent cases, consumer surveys are becoming increasingly common to demonstrate consumer demand for patented features. Nonetheless, to be admissible, the surveys will need to be properly constructed and they will need to be directed at the plaintiff’s claimed technology or they will properly be excluded by the district courts. This is likely to prove challenging as surveys are inherently difficult to construct and can prove unreliable even when measuring relatively straightforward issues such as likelihood of confusion. As a result, we can expect more decisions addressing how to properly frame surveys in patent cases and we will likely see many more surveys excluded as well.

Fractus, S.A. v. Samsung Electronics Co., Ltd., et. al., Case No. 6-09-cv-00203 (E.D. Tex. April 29, 2011).

The authors of are patent litigation lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or