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As for the survey, i4i’s survey expert (Dr. Wecker) explained that it was limited to

estimating infringing use by businesses; i4i did not even seek damages for infringing

use

by

individual

consumers.

Wecker

sent

the

survey

to

988

large

and

small

businesses randomly selected from a database of 13 million U.S. companies. Wecker

explained that this large sample size was necessary to ensure he received sufficient

responses (between 25 and 100) because many companies are “too busy” or have

policies

against

responding

to

surveys.

The

survey

consisted

of

screening

and

substantive questions. The screening questions helped identify the proper person to

speak with about the company’s use of custom XML. Wecker received 46 responses to

the survey, which consisted of approximately 40 substantive questions. For all of the

questions, the responder had the option of saying they did not know. Any company that

took the survey received $35, regardless of the answers they gave. Wecker explained

that he used logical imputation, an accepted procedure for statisticians to resolve

inconsistent survey responses, to make some of the answers consistent. Of those that

responded to the survey, 19 companies reported using Word in an infringing manner.

Wecker assumed that all the companies that did not respond (942) did not use Word in

an

infringing

manner.

Based

on

these

assumptions,

Wecker

determined

that

1.9%

(19/988) of all copies of Word sold to businesses between 2003 and 2008 were used in

an infringing manner. Wecker then multiplied this percentage (1.9%) by the number of

copies of Word sold to businesses, for a total of 1.8 million infringing uses.4

4 Based on sales of Word, Wagner then estimated the number of additional infringing uses that occurred between the end of the survey date and start of trial, to give a total of 2.1 million.

2009-1504

33

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