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Music Choice v. Stingray Digital Group Inc.

United States District Court, E.D. Texas, Marshall Division

July 6, 2017

MUSIC CHOICE, Plaintiff,
v.
STINGRAY DIGITAL GROUP INC. and STINGRAY MUSIC USA, INC., Defendants. Term Agreed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendants' Proposed Construction

          CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER

          ROY S. PAVNE UNITED STATES MAGISTRATE JUDGE

         Before the Court is the opening claim construction brief of Music Choice (“Plaintiff”) (Dkt. No. 112, filed on under seal on April 28, 2017), [1] the response of Stingray Digital Group Inc. and Stingray Music USA, Inc. (collectively “Defendants”) (Dkt. No. 130, filed under seal on May 12, 2017), and the reply of Plaintiff (Dkt. No. 135, filed on May 19, 2017). The Court held a hearing on the issues of claim construction and claim definiteness on June 12, 2017. Having considered the arguments and evidence presented by the parties at the hearing and in their briefing, the Court issues this Order.

         Table of Contents

         I. BACKGROUND ............................................................................................................... 3

         A. The Video-On-Demand Patents .............................................................................. 3

         B. The Visual-Complement Patents ............................................................................ 5

         II. LEGAL PRINCIPLES ..................................................................................................... 6

         A. Claim Construction ................................................................................................. 6

         B. Departing from the Ordinary Meaning of a Claim Term ........................................ 9

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................. 10

         III. AGREED CONSTRUCTIONS ..................................................................................... 11

         IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 13

         A. “first transmission system” and “second transmission system” ........................... 13

         B. “generate the video image by retrieving the media assets identified in the video image specification” and “generate a video image using the media assets identified in the video image specification” ............................................... 17

         C. “transmit to the second transmission system the generated video image multiplexed with the audio data corresponding to the sound recording” ............. 20

         D. “trigger message” .................................................................................................. 22

         E. “still image” .......................................................................................................... 26

         F. The Broadcast Terms ............................................................................................ 28

         G. “multicast” and “music multicast system” ............................................................ 32

         H. “configuring a client system to receive and play music broadcast from a broadcast media source through a broadcast channel” ......................................... 35

         I. “creating a playlist” ............................................................................................... 38

         J. “data packet” ......................................................................................................... 40

         K. “set-top-box” ......................................................................................................... 43

         L. “linear audio channel” ........................................................................................... 45

         M. “popular music videos” ......................................................................................... 47

         N. The Stream Terms ................................................................................................. 49

         V. CONCLUSION ............................................................................................................... 52

         I. BACKGROUND

         Plaintiff alleges infringement of five U.S. Patents: No. 7, 320, 025 (the “'025 Patent”), No. 8, 769, 602 (the “'602 Patent”), No. 9, 351, 045 (the “'045 Patent”), No. 9, 357, 245 (the “'245 Patent”), and No. 9, 414, 121 (the “'121 Patent”) (collectively, the “Asserted Patents”). The Asserted Patents consist of two patent families. The first family includes the '025, '045, and '121 Patents (the “Video-On-Demand Patents”). The second family includes the '602 and '245 Patents (the “Visual-Complement Patents”).

         A. The Video-On-Demand Patents

         Through a series of continuation and continuation-in-part applications, each of the Video-On-Demand Patents claim priority to an application filed on March 18, 2002. In general, the Video-On-Demand Patents are directed to technology for supplementing a broadcast media service with an on-demand and personalized media service.

         The abstracts of the Video-On-Demand Patents are identical and provide:

         The present invention provides systems and methods for, in some cases, supplementing a broadcast media service with an on-demand and personalized media service.

         Claim 1 of the '025 Patent, an exemplary method claim, provides:

         1. A method, comprising:

configuring a client system to receive and play music broadcast from a broadcast media source through a broadcast channel;
receiving application data at the client system, the application data including a video identifier identifying a video, wherein the application data is transmitted with the broadcast music;
while the client system is playing the broadcast music, (a) enabling a user of the client system to indicate that the user desires to view the video and (b) receiving an indication that the user desires to view the video;
in response to receiving the indication, automatically ceasing the playing of the broadcast music, transmitting from the client system to an on-demand system the received video identifier, and establishing an on-demand session between the on-demand system and the client system; and
after establishing the on-demand session, transmitting from the on-demand system to the client system the identified video, receiving the transmitted video at the client system, and automatically playing the received video in response to receiving the transmitted video from the on-demand system.

         Claim 1 of the '121 Patent, an exemplary system claim, provides:

         1. A system for providing an on-demand, personalized media service and a broadcast service to a set-top-box, comprising:

a distribution network, wherein the set-top-box is connected to the distribution network; and a distribution system including a transmission system operable to transmit via the distribution network a media channel comprising a stream of audio and video data, wherein
the set-top-box is operable to:
(1) receive the media channel via the distribution network,
(2) reproduce the stream of audio data included in the received media channel for a user of the client system to hear,
(3) display video corresponding to the stream of video data included in the received media channel on a display device for the user to see,
(4) receive via the distribution network video identifier information comprising an identifier for identifying an available on-demand video while displaying on the display device the video corresponding to the stream of video data included in the received media channel,
(5) display a user selectable element for requesting the available on-demand video on the display device so that the user selectable element is displayed on the display device together with at least a portion of the video corresponding to the stream of video data as a result of receiving the video identifier information transmitted to the set-top-box using the distribution network, the user selectable element being associated with the available on-demand video, and
(6) in response to the user of the set-top-box selecting the user selectable element, causing an on-demand video system to transmit to the set-top-box the available on-demand video by transmitting to the on-demand video system an on-demand request message.

         B. The Visual-Complement Patents

         Through a series of continuation applications, each of the Visual-Complement Patents claim priority to an application filed on August 28, 2001. In general, the Visual-Complement Patents are directed to technology for providing a video image to complement an audio data stream.

         The abstracts of the Visual-Complement Patents are identical and provide:

A system and method for providing an interactive, visual complement to one or more audio programs. In one aspect, the system comprises an audio subsystem for generating an audio signal corresponding to a sound recording. The system also comprises a video subsystem for generating a video image specification based, at least in part, on the sound recording. In one aspect, the audio signal and video image specification are transmitted to an audio/video signal transmission system. The transmission system receives the video image specification and generates a video signal that conforms to the video image specification. The video signal and the audio signal are transmitted to at least one consumer receiver. In this way, the system provides a visual complement to an audio program.

         Claim 1 of the '602 Patent, an exemplary method claim, provides:

         1. A method for providing a visual complement to an audio stream, comprising:

transmitting, from a first transmission system to a second transmission system, audio data corresponding to a sound recording; and
transmitting a data packet comprising a video image specification while the audio data is being transmitted, wherein the video image specification specifies one or more media asset identifiers, each of which identifies one or more media assets, one or more of said media asset identifiers identifying a media asset associated with the sound recording, said data packet further comprising sound recording information associated with the sound recording, the sound recording information comprising one or more of the title of the sound recording and the name of the artist who recorded the sound recording, wherein
the step of transmitting the data packet comprises transmitting the data packet to a system comprising a video image generator, wherein the video image generator is configured to generate a video image using the video image specification and the system is configured to provide the generated video image to a device that is operable to display the video image to a user of the device, and wherein the video image generator is configured to generate the video image by retrieving the media assets identified in the video image specification.

         Claim 12 of the '245 Patent, an exemplary system claim, provides:

         12. A system for providing a visual complement to an audio service, the system comprising:

an audio transmission system configured to transmit audio data corresponding to a sound recording specified in a playlist for a linear audio channel; and a receiving system, comprising a receiver and a video image generator, the receiving system being configured to:
i) in response to receiving a data packet that was generated using an identifier identifying the sound recording, generate a video image in accordance with information included in the data packet, wherein the data packet includes a media asset identifier identifying a media asset and further includes sound recording information associated with the sound recording, the sound recording information comprising the title of the sound recording and the name of the artist who recorded the sound recording; and
ii) automatically output the generated video image such that it is received at a display device operable to display the video image to a user of the display device without the user having to select a menu item, wherein
the generated video image includes the song information comprising the title of the song and the name of the artist, and
the receiving system is configured to retrieve the identified media asset and use the retrieved media asset in generating the video image.

         II. LEGAL PRINCIPLES

         A. Claim Construction

         “It is a ‘bedrock principle' of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.'” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. The general rule-subject to certain specific exceptions discussed infra-is that each claim term is construed according to its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant community at the relevant time.”) (vacated on other grounds).

         “The claim construction inquiry . . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.'” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term's context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim's meaning, because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

         “[C]laims ‘must be read in view of the specification, of which they are a part.'” Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “‘[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.'” Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment described in the specification-even if it is the only embodiment-into the claims absent a clear indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).

         The prosecution history is another tool to supply the proper context for claim construction because, like the specification, the prosecution history provides evidence of how the U.S. Patent and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317. However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as an interpretive resource”).

         Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic record in determining the legally operative meaning of claim language.'” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition are not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim construction:

In some cases, however, the district court will need to look beyond the patent's intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871) (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”). In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the “evidentiary underpinnings” of claim construction that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal.

Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015).

         B. Departing from the Ordinary Meaning of a Claim Term

         There are “only two exceptions to [the] general rule” that claim terms are construed according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the specification or during prosecution.”[2] Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the plain meaning in two instances: lexicography and disavowal.”). The standards for finding lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.

         To act as his own lexicographer, the patentee must “clearly set forth a definition of the disputed claim term, ” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669 F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee's lexicography must appear “with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.

         To disavow or disclaim the full scope of a claim term, the patentee's statements in the specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at 1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”). “Where an applicant's statements are amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)[3]

         Patent claims must particularly point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2129 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as indefinite. Id. at 2124. Whether a claim is indefinite is determined from the perspective of one of ordinary skill in the art as of the time the application for the patent was filed. Id. at 2130. As it is a challenge to the validity of a patent, the failure of any claim in suit to comply with § 112 must be shown by clear and convincing evidence. Id. at 2130 n.10. “[I]ndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012).

         When a term of degree is used in a claim, “the court must determine whether the patent provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is used in a claim, “the court must determine whether the patent's specification supplies some standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005); accord Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014) (citing Datamize, 417 F.3d at 1351).

         III. AGREED CONSTRUCTIONS

         The parties have agreed to the following constructions set forth in their Joint Claim Construction Chart P.R. 4-5(d) (Dkt. No. 137) and at oral argument.

Term[4]
Agreed Construction

“media asset(s)”

• '602 Patent Claims 1, 8

• '245 Patent Claims 1, 12, 17

• '025 Patent Claim 8

• '045 Patent Claims 1, 6, 14, 19

media items including, for example, graphic image files, audio files, video files and/or text messages

“personalized media service”

• '121 Patent Claim 1

a service that allows a user to have at least some degree of control over the content that is transmitted by the service provider to the user

“on-demand service”

• '121 Patent Claim 6

a service that enables a user to select the precise content (e.g., music, video or other content) and/or type of content (e.g., genre and sub-genre) that is transmitted by the service provider to the user, when the user desires such content

“video image specification”

• '602 Patent Claims 1, 8

no construction necessary - the words of the claims should be given their plain and ordinary meaning

“configured to”

• '602 Patent Claims 1, 8

• '245 Patent Claim 12

• '045 Patent Claims 5, 6, 10-11, 16

• '121 Patent Claim 6

no construction necessary - the words of the claims should be given their plain and ordinary meaning

“media channel”

• '121 Patent Claims 1, 6

no construction necessary - the words of the claims should be given their plain and ordinary meaning

“video data”

• '045 Patent Claims 1, 6, 11, 16

• '121 Patent Claims 1, 6

no construction necessary - the words of the claims should be given their plain and ordinary meaning

         Considering the parties' agreement, the Court hereby adopts the parties' agreed constructions.

         IV. CONSTRUCTION OF DISPUTED TERMS

         A. “first transmission system” and “second transmission system”

Disputed Term
Plaintiff's Proposed Construction
Defendants' Proposed Construction

“first transmission system”

• '602 Patent Claims 1, 8

• '245 Patent Claims 1, 17

no construction necessary - the words of the claims should be given their plain and ordinary meaning

first/second system that is not a digital network and that transmits a signal

“second transmission system”

• '602 Patent Claims 1, 8

• '245 Patent Claims 1, 17

no construction necessary - the words of the claims should be given their plain and ordinary meaning

first/second system that is not a digital network and that transmits a signal

         Because the parties' arguments and proposed constructions with respect to these terms are related, the Court addresses the terms together.

         The Parties' Positions

         Plaintiff submits: These terms are used in the Visual-Complement Patents according to their plain and ordinary meanings (systems that transmit things) and a jury will properly understand these terms without construction. Dkt. No. 112 at 9. Defendants' proposed “signal” limitation is improper because the claims expressly state that the systems transmit “data.” Id. at 10. And the “is not a digital network” limitation is improper because the patents describe exemplary transmission systems that may, in the art, be or include digital networks. Id. at 9-10.

         In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic evidence to support its position: Intrinsic evidence: '602 Patent fig.1, col.1 ll.59-63, col.4 ll.21-23, col.4 ll.27-30, col.6 ll.22-27, col.10 ll.41-46; '602 Patent File Wrapper July 29, 2013 Reply to Non-Final Office Action (Plaintiff's Ex. A, Dkt. No. 112-8). Extrinsic evidence: Russ Decl.[5]¶¶ 45-56 (Dkt. No. 112-6 at 18-23).

         Defendants respond: In the description of the invention, the Video-On-Demand Patents distinguish “transmission system” from “public network” and “private network” by listing them in the disjunctive, and thus define “transmission system” as something other than a network. Dkt. No. 130 at 6-7. Further, the patents consistently describe the “transmission systems” as signal transmission systems. Id. at 7-8.

         In addition to the claims themselves, Defendants cite the following intrinsic and extrinsic evidence to support their position: Intrinsic evidence: '602 Patent col.1 ll.45-67, col.4 ll.20-21, col.4 ll.23-25, col.5 ll.37-40, col.6 ll.26-27, col.8 ll.12-15. Extrinsic evidence: Steinberg Dep.[6]130:8-13 (Defendants' Ex. 4, Dkt. No. 130-5 at 8); Shamos Decl.[7] ΒΆΒΆ ...


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