FPX, LLC v. Google, Inc. et al

Filing 79

MOTION to Exclude the Expert Report and Opinion of Thomas J. Maronick and Brief in Support by AOL, LLC., Google, Inc., IAC/InterActiveCorp, MySpace, Inc., Turner Broadcasting System, Inc., YouTube, LLC. (Attachments: # 1 Declaration of Carl Butzer, # 2 Exhibit A to Declaration of Carl Butzer part 1, # 3 Exhibit A to Declaration of Carl Butzer part 2, # 4 Exhibit A to Declaration of Carl Butzer part 3, # 5 Exhibit A to Declaration of Carl Butzer part 4, # 6 Exhibit A to Declaration of Carl Butzer part 5, # 7 Exhibit A to Declaration of Carl Butzer part 6, # 8 Exhibit A to Declaration of Carl Butzer part 7, # 9 Errata A to Declaration of Carl Butzer part 8, # 10 Exhibit A to Declaration of Carl Butzer part 9, # 11 Exhibit A to Declaration of Carl Butzer part 10, # 12 Exhibit A to Declaration of Carl Butzer part 11, # 13 Exhibit A to Declaration of Carl Butzer part 12, # 14 Exhibit A to Declaration of Carl Butzer part 13, # 15 Exhibit A to Declaration of Carl Butzer part 14, # 16 Exhibit B to Declaration of Carl Butzer, # 17 Declaration of Itamar Simonson, # 18 Exhibit 1 to Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles)

FPX, LLC v. Google, Inc. et al

Doc. 79 Att. 7

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criteria, do you own a bicycle, so only people who owned a bicycle. Secondly, how often do you ride your bicycle, excluding people who said never. The third one, do you use search engines, which of the following search engines do you use. Q. A. So on and so forth? The screening criteria, have you

ever used Internet searching to find information about a bicycle -- about bicycles you might consider buying, which is question five. So I

didn't make any assumptions about what they do. I really went the other way, tried to screen people who would, in fact, use search engines and would use search engines to find information about bicycles. Q. You mentioned the first question On page 79 we

on Trek, do you own a bicycle. had yeses for 200 people; right? A. Q. Yes.

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So everyone who answered the

survey for Trek was a current owner of a bicycle; right? A. Q. That's correct. Why did you specify that?

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seemed to me it makes more sense people who already own a bicycle would be interested in something like a Trek bicycle. Clearly if the people don't have a bicycle I would not expect their opinions or approaches to be different than the person who does have a bicycle. It just made more sense to focus on that subgroup. Q. Would you agree that perspective buyers may well likely include folks who don't own a bicycle? A. Clearly the people who don't own a

bicycle are -- could be in the market, as well. Q. And as to which group of persons

are more likely to be in the market for a bike, do you have any information as to whether or not it turns on ownership of the bike, one way or another? A. Q. detail later. Let me ask you some additional questions, Professor, about surveys in general. Do you believe it's important in surveys for them to replicate as clearly as possible actual market conditions? No, I do not. We'll talk about those in greater

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a Google search for Southwest Airlines, what they saw is exactly what they would have seen if they had done tonight their own home. Q. So you're referring to the

stimuli, that is the search results page is what you believe to replicate the market conditions; right? A. Q. Yes. Same thing with respect to Trek,

the stimuli was the search results page that was shown to each respondent in the questionnaire; correct? A. Q. Yes. Now, those were static views of

each respective website; true? A. Q. Yes. So in that sense -- of course, if

I was on-line looking at Southwest Airlines it would not be static. Of course, I could scroll

up and down and I could click through or not click through; true? A. That's correct. It would only

show the first page of what it may have been multiple pages, but those were the pages where the sponsored links were.
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And, secondly, it was high across the three hypothetical sponsored links for an iPAD. And then it was consistently high across the two actual links. Q. Do your results suggest that all

sponsored links, regardless of the search name or the sponsored links, cause initial interest confusion? MR. FENSTER:
THE WITNESS:

Object to form. No.

How do we determine which

sponsored links cause initial interest confusion and those that don't? A. Well, the -- those sponsored links

where the consumer can't buy the product or service of the searched for -- the searched for product or service would be the ones where there would be initial interest confusion. Q. A. All right, sir. And also where they see that there

is an association, affiliation, relationship between the sponsored link and the searched for link, when it isn't there.

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194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them? Q. A. Q. Right. No, it does not. And, in fact, you have not gone Veritext Corporate Services 973-410-4040 Q. Okay. And how can we go about

identifying all of those sponsored links that in your view are initially interest confusing and those for which no consumer would be confused? MR. FENSTER: Object to form.
THE WITNESS: I really haven't

thought about how to go about it. That seems to me that's Google's task, I mean, to identify that or figure out how to do that. I really didn't look at that, wasn't asked to consider that. BY MR. MORAN: Q. Okay. So you haven't been asked

to undertake how to answer that question of identifying those sponsored links that may cause initial interest confusion from those that cause no confusion; true? A. Q. That's correct, I have not. And so your report says nothing

about the answer to that question; true? A. About how to go about identifying

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