EXHIBIT 5

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HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY 

EXPERT REPORT OF DR. AVIEL D. RUBIN / CASE NO. 5:17-CV-00551-LHK 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

CHRISTINA GRACE and KEN POTTER, 

Individually and on Behalf of All Others 

Similarly Situated, 

Plaintiffs, 

v. 

APPLE INC., 

Defendant. 

Case No. 5:17-cv-00551-LHK 

EXPERT REPORT OF DR. AVIEL D. RUBIN 

 

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 51 

EXPERT REPORT OF DR. AVIEL D. RUBIN / CASE NO. 5:17-CV-00551-LHK 

140. Further, device performance is highly context-dependent. As discussed above, many 

factors that can affect device performance (measured by metrics like launch times, web page load times, 

and UI responsiveness), including the age of the hardware, other applications running and/or loaded on 

the device, the presence of viruses or malware, how long it has been since the last reboot, and others. Dr. 

Jones does not appear to know the environment in which these tests were run. It is therefore unclear how 

Dr. Jones reaches his conclusion that they reflect the experience of any particular user, let alone “overall” 

performance in some unspecified sense. 

141. In my view, Dr. Jones thus does not have a basis to conclude either that any particular 

regression was “perceptible” or that users would have perceived the overall performance of the devices 

as slower in some broader sense. There is no mapping between a large set of varied, discrete test results 

and the user experience, and the results themselves vary widely enough that they do not lend themselves 

to a conclusion that the iPhone 4 and 4S would have “felt” slower to a user. 

142. As discussed above, Dr. Jones’ reliance on the other materials he examines do not indicate 

that the Apple performance test data reflects “perceptible” regressions. Apple statements about the 

importance of performance cannot do so because they don’t set forth a threshold for perceptibility, and 

because Dr. Jones never attempts to quantitatively (or in any other way) compare them to the results of 

any Apple performance tests. The fact that Apple was monitoring similar performance test data is 

routine in the industry and does not say anything about whether the regressions reflected in the 

performance test results would have been perceptible to a user. And the miniscule number of user 

complaints cited, compared to the number of phones on the market, indicate the opposite of Dr. Jones’ 

conclusion: that any difference in performance was not perceptible to users – at least not to a large 

enough degree to draw a substantial number of complaints. 

E. There is No Indication That iOS 7.1 Performance was Inadequate.

143. Even if it were possible to conclude that iOS 7.1 exhibited performance regressions that 

were perceptible to users, that would not mean that iOS 7.1 performed poorly or inadequately, or that the 

iPhone 4 and iPhone 4S “buckled under the weight” of the new operating system, or were incompatible 

with it. Just because a smartphone or any other computer slows down in a way perceptible to the human 

eye does not automatically render its performance unsatisfactory. Dr. Jones does not attempt to analyze 

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EXPERT REPORT OF DR. AVIEL D. RUBIN / CASE NO. 5:17-CV-00551-LHK 

the impact of any regression on user satisfaction. 

144. I note three pieces of evidence that indicate that the performance of iOS 7.1 on the iPhone 

4 and/or 4S was not unsatisfactory. First, the Ars Technica article on which Dr. Jones relies notes that 

while in the author’s view the iPhone 4 has some problems running iOS 7.1, the operating system’s 

improvements “make[] the iPhone 4 feel more responsive than it did, if not always as responsive as it 

once was,” that the resulting performance is “tolerable” and even “impressive” considering the age of the 

hardware.172 While I cannot comment on the reliability of Ars Technica’s reporting, it does not indicate 

that iOS 7.1 performance on the iPhone 4 was inadequate. 

145. Second, the Apple performance data on which Dr. Jones relies indicates that in almost all 

cases, the performance of iOS 7.1.1 on the iPhone 4S was better than the performance of iOS 6.1.3 on the 

iPhone 4. iOS 7.1.1 on the iPhone 4S outperformed iOS 6.1.3 on the iPhone 4 in 75 out of the 93 

corresponding tests listed in Dr. Jones’ exhibits 2 and 3, and in 94 out of the 100 page load tests listed in 

Dr. Jones’ exhibit 4. I am not aware of any allegation that iOS 6.1.3 performed inadequately on the 

iPhone 4, or that iPhone 4 “buckled under the weight” of iOS 6.1.3. It is therefore illogical to contend 

that iOS 7.1 was non-functional on the iPhone 4S, or that the iPhone 4S “buckled under its weight.” 

146. 

 

 

 

 

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172 https://arstechnica.com/gadgets/2013/09/new-lease-on-life-or-death-sentence-ios-7-on-the-iphone-4/. 

173 APL-GRACE_00001956; Ex. C. 

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EXPERT REPORT OF DR. AVIEL D. RUBIN / CASE NO. 5:17-CV-00551-LHK 

VIII. MISCELLANEOUS 

147. I incorporate here the opinions expressed in my declaration in support of Apple’s 

opposition to Plaintiffs’ motion for class certification, as modified by the later addendum to that 

declaration. 

Dated: September 18, 2018 

 Dr. Aviel D. Rubin 

 

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