J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 135

DECLARATION of Claudia T. Bogdanos in Opposition re: 120 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Susan Schwartz McDonald.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I Part 1, # 10 Exhibit I Part 2, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R)(Chattoraj, Partha)

EXHIBIT R

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

J.T. COLBY & COMPANY, INC. d/b/a
BRICK TOWER PRESS, J. BOYLSTON &
COMPANY, PUBLISHERS LLC and IPICTUREBOOKS Case No. 11-CV-4060 (DLC)
LLC,
ECF CASE
Plaintiffs,
- against APPLE, INC.,
Defendant.

EXPERT REPORT OF STEPHEN M. NOWLIS

someone who had also participated in Dr. McDonald’s survey. Dr. McDonald’s failure to ask
these standard questions is another reason why the survey results are not meaningful.35
48.

Finally, Dr. McDonald offered no basis to support the demographics of the

universe she selected, including whether the age and gender distributions accurately reflected the
demographics of e-book purchasers. Instead, Dr. McDonald’s survey universe was comprised of
“roughly equal distribution of men and women in three broad age categories (18-35, 36-50 and
51+).”36 It is unclear whether Dr. McDonald’s universe is a representative sample of e-book
purchasers.
2.
49.

Respondents Were Primed to Think of Apple.

A well-recognized principle of survey design is that question order can prime or

lead respondents to answer in a particular way by improperly putting something in their minds.
Thus, it is important to design a survey to avoid “order effects.” Yet, Dr. McDonald designed
the last screening question to ask if the respondent had “downloaded a digital book to a reading
device of any kind, including a smartphone.”37 Right after this question, the respondent was
asked the critical question on the main survey, i.e., if “you see the word ‘iBooks’ what company
or companies would you think had made the book available?”38 The screener question thus
prompted the respondent to think about a “smartphone,” and likely placed Apple, one of the

35

See id.

36

McDonald Report, p. 10. It is my understanding that the demographics of book purchasers are
similar to those of the U.S. population as a whole, and I used those demographics in my survey.
37

McDonald Report, p. 9.

38

Id., p. 11.

19

largest producers of smartphones, in the “respondent’s consciousness.”39 Immediately after
causing respondents to think about “smartphones” (and likely Apple, maker of the popular
IPHONE line of smartphones), Dr. McDonald instructed respondents to picture the word
“iBooks” in Apple’s distinctive formulation. Thus, the screener question likely caused the
respondents to think more about Apple and Apple products than they would have if they had not
been thinking about “smartphones” just before being asked about “iBooks.” This flaw in Dr.
McDonald’s methodology likely inflated the rate of confusion.
3.
50.

Dr. McDonald Failed to Ask Generally Accepted Questions for
Testing Confusion.

The most widely accepted survey methodology for testing confusion is called an

Eveready survey. In a typical Eveready survey, respondents are shown the product at issue, are
asked “Who makes or puts out” the product, are given the opportunity to explain the reason for
the answer (i.e., “Why do you say that?”), and then are asked a series of questions to determine
whether the company that “makes or puts out” the product is sponsored by or affiliated with any
other companies.40 If the stated reasons for a response show that answer is due to the infringing
element, then the survey respondent providing that answer is counted as confused.
51.

However, Dr. McDonald did not follow this method. Instead, Dr. McDonald

asked respondents: “If, on [the] page [of an electronic book], you see the word ‘iBooks’ what
company or companies would you think had made the book available?”41 By using this question
instead of the standard Eveready approach, Dr. McDonald’s survey likely led respondents to
39

Prof. Diamond (2011) warns about order effects in “Reference Guide on Survey Research,” in
Reference Manual on Scientific Evidence, 3rd edition, Federal Judicial Center, The National
Academies Press (hereinafter, “Diamond, Reference Guide”).
40

See Swann, pp. 56-57.

41

McDonald Report, p. 11.

20