Infringing feature of software product valued using AMS survey

Applied Marketing Science, Inc. (AMS) provided critical survey data in a landmark case involving alleged copyright infringement of a popular spreadsheet program. AMS provided survey expertise to an economic consulting firm that was retained by the defendant to develop damages estimates and critique the plaintiff’s damages models. The AMS team first conducted a Voice of the Customer analysis to generate the list of attributes consumers considered in their software purchases. The team then used these attributes in a conjoint study to capture statistical data on consumer buying preferences. Based on this information, the AMS expert showed that the aspects of the menu structure in dispute were not as critical as the plaintiff had asserted. The First Circuit found for the defendant, concluding that the allegedly infringing features were not copyrightable. The plaintiff appealed to the Supreme Court, which did not reverse the First Circuit’s opinion.