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Music Choice v. Stingray Digital Group Inc.

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

November 5, 2019

MUSIC CHOICE, Plaintiff,
v.
STINGRAY DIGITAL GROUP INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is (1) Plaintiff Music Choice's Daubert Motion to Strike Deposition Testimony of Defendants' Expert Dr. Michael Shamos for Presenting Untimely and Undisclosed Opinions (“Motion to Strike”) (Dkt. No. 188) and (2) Music Choice's Alternative Motion for Leave to Serve the Supplemental Expert Report of Samuel Russ, Ph.D (“Motion for Leave”) (Dkt. No. 230).

         Music Choice raises two separate arguments within its Motion to Strike. Music Choice first seeks to exclude Dr. Shamos' opinion that “the Audio Engine and StillPic Generator components of the accused Ubiquicast machine purportedly send data between them via a shared RAM memory, which according to Dr. Shamos, does not qualify as the ‘transmission' of data as recited in '245 claims 10 and 15.” (Dkt. No. 188 at 5.) Music Choice also seeks to exclude Dr. Shamos' “invalidity opinion that Rothman made MP4 technology obvious.” (Dkt. No. 188 at 6.) Music Choice filed its Motion for Leave seeking to file a supplemental report to address these opinions in the event that Music Choice's Motion to Strike is denied. (Dkt. No. 230.)

         The Court will first address Music Choice's argument regarding the allegedly new infringement theory and then address Music Choice's argument regarding the allegedly new invalidity theory. Finally, the Court will address whether the Motion for Leave should be granted to allow Music Choice to supplement its reports to address both the infringement and the invalidity theory.

         I. INFRINGEMENT THEORY REGARDING COMMON MEMORY

         Claim 10 is representative of claim 15 here, and claim 10 is dependent upon claim 1. Claim 1 requires:

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 selected song; and
transmitting a data packet that was generated using an identifier identifying the selected song, wherein the data packet includes a media asset identifier identifying a media asset and further includes song information associated with the selected song, the song information comprising the title of the song and the name of the artist who recorded the song, wherein
the step of transmitting the data packet comprises transmitting the data packet to a receiving system that is configured such that, in response to receiving the data packet, the receiving system automatically generates a video image using the information included in the data packet and automatically outputs the generated video image such that it is received by a display device that is operable to display the video image to a user of the display device without the user having to select a menu item, and
the generated video image includes the song information comprising the title of the song and the name of the artist.

(emphasis added). Claim 10 adds the requirement that “the video image is encoded according to a Moving Pictures Experts Group (MPEG) standard.”

         Within an exhibit to Dr. Shamos' expert report, Dr. Shamos stated that “[t]he StillPic Generator and the Audio engine are the same piece of software. Thus one does not transmit to the other and the StillPic Generator virtual machine cannot act as ‘receiving system' for the Audio Engine.” (Dkt. No. 188-5 at 12 (using ECF page number).) Elsewhere within the same report, Dr. Shamos stated that “Mr. Lavigne testified that the StillPic Generator and the Audio engine are the same piece of software. Thus one does not transmit to the other and the StillPic Generator virtual machine cannot act as ‘receiving system' for the Audio Engine.” (Id. at 10 (using ECF page numbers) (internal citations omitted).)

         At Dr. Shamos' deposition, Dr. Shamos stated that, “if the Galaxie StillPic generator deposits data in RAM, and the Ubiquicast audio engine retrieves it from RAM, there is no transmission.” (Dkt. No. 188-6 at 58:1-4.) He stated that “[s]oftware components running on the same box can't transmit to one another . . . because there is no transmission channel.” (Id. at 58:7- 10.) Dr. Shamos also opined that, “[i]f I put data in RAM and another module of the software takes it out of RAM, there is no transmission.” (Id. at 58:15-17.)

         Music Choice argues that the Dr. Shamos only opines in his expert report “that there was no ‘transmission' of data packets between the Audio Engine and StillPic Generator because the two supposedly were ‘the same piece of software.'” (Dkt. No. 188 at 5.) Based on Dr. Shamos' statements during his deposition, Music Choice argues that Dr. Shamos pivoted his non-infringement theory to now argue that there is no transmission “because data is purportedly sent between the StillPic Generator and Audio Engine via shared RAM or common memory.” ...


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