On February 14, 2017, Judge Chhabria of the Northern District of California granted, in part, Apple’s motion to exclude the expert report of Unwired Planet’s survey expert, Dr. Allenby. Dr. Allenby was hired to conduct a consumer survey to assess the value of the claimed method for “provisioning” a mobile communication device. This process involves the mobile communication device connecting with a server and being authenticated to allow the user access to certain services. According to the decision, Dr. Allenby’s report, however, relied on Unwired Planet’s proposed definition of “provisioning,” and not the court’s construction. The expert had defined the term “provisioning” to mean something akin to “providing;” however, the court’s construction was far narrower.
The court found that the survey that was conducted to determine the damage amount was then wholly inaccurate, since “[t]he combined result is a survey question – and survey responses – targeted at an invention other than the one at issue in this litigation.” The court held that the impact of such an error was not a question of the weight of the expert report, but rather, its admissibility. The court also held that Unwired Planet would not be able to refine and resubmit a different survey because “where the initial effort misses the mark so badly, it would be inappropriate to incentivize overreaching by allowing a second attempt.”
This case underscores the importance of drafting expert reports and related documents in such a manner to account for alternative proposed construction that may ultimately be adopted by the court. The failure to do so may result in the exclusion of the evidence and, depending on the circumstances, the denial of an opportunity to cure the error.
Unwired Planet, LLC v. Apple, Inc., 3-13-cv-04134 (CAND February 14, 2017, Order) (Chhabria, USDJ).