Case 2:23-cv-00059-JRG-RSP Document 322 Filed 02/13/25 Page 1 of 4 PageID #:
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:23-CV-00059-JRG-RSP
`(Lead Case)
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`TOUCHSTREAM TECHNOLOGIES,
`INC.,
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` Plaintiff,
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`v.
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`CHARTER COMMUNICATIONS, INC.,
`et al.,
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` Defendants.
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`REPORT & RECOMMENDATION
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`Before the Court is the Comcast Defendants’ Motion for Summary Judgment of
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`Noninfringement. Dkt. No. 85. For the reasons discussed below, the Motion should be DENIED.
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`I. LEGAL STANDARD
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`A. Summary Judgment
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`Summary judgment should be granted “if the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). Any evidence must be viewed in the light most favorable to the nonmovant. See Anderson
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`v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
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`158–59 (1970)). Summary judgment is proper when there is no genuine dispute of material fact.
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`Celotex v. Catrett, 477 U.S. 317, 322 (1986). “By its very terms, this standard provides that the
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`mere existence of some alleged factual dispute between the parties will not defeat an otherwise
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`properly supported motion for summary judgment; the requirement is that there be no genuine
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`[dispute] of material fact.” Anderson, 477 U.S. at 247–48 (emphasis added). The substantive law
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`identifies the material facts, and disputes over facts that are irrelevant or unnecessary will not
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`defeat a motion for summary judgment. Id. at 248. A dispute about a material fact is “genuine”
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`when the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.”
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`Id.
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`The moving party must identify the basis for granting summary judgment and evidence
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`demonstrating the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323.
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`“If the moving party does not have the ultimate burden of persuasion at trial, the party
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`‘must either produce evidence negating an essential element of the nonmoving party’s claim or
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`defense or show that the nonmoving party does not have enough evidence of an essential element
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`to carry its ultimate burden of persuasion at trial.’” Intellectual Ventures I LLC v. T Mobile USA,
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`Inc., No. 2:17-CV-00577-JRG, 2018 WL 5809267, at *1 (E.D. Tex. Nov. 6, 2018) (quoting Nissan
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`Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)).
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`II. ANALYSIS
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`In the Motion, Comcast argues that Touchstream’s damages expert, Dr. Kevin Almeroth,
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`“opines that all Comcast X1 set top boxes (“STBs”) with the mere capability of receiving remote
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`tune requests from another device infringe the Asserted Claims.” Dkt. No. 85 at 1. Comcast asserts
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`that this is a violation of law because all the asserted claims are method claims which are only
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`directly infringed by practicing the patented method. Id. at 4. Ultimately, Comcast argues that
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`summary judgment should be granted on this issue, and the Court should require Touchstream to
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`“carve out from any damages any X1 STB not used in conjunction with actual performance of the
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`claimed methods.” Id. at 6.
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`In Response, Touchstream agrees with Comcast’s recitation of the law regarding method
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`claims, but disputes Comcast’s assertion about Dr. Almeroth’s analysis purporting to accuse
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`products with the mere capability of performing the method steps: “Dr. Almeroth analyzed and
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`provided opinions on Comcast’s performance of those methods.” Dkt. No. 122 at 7.
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`In Reply, Comcast focuses its argument on Dr. Mangum’s report. Dkt. No. 151 at 2–3. It
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`argues that “there is no longer a genuine dispute of material fact that any X1 STB that has not
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`received an accused remote-tune request from another device does not infringe. Id. at 2. Comcast
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`then moves to Dr. Mangum’s damages opinions, arguing that he “continues to base his damages
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`opinions on the infringement theory that Touchstream disavows.” Id. at 2–3.
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`The Court finds Comcast’s arguments unpersuasive. First, the Court has already denied
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`Comcast’s Motion to Strike the Opinions of Dr. Mangum based on the same line of argument. Dkt.
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`No. 239. Next, Dr. Almeroth relies on the correct legal test. Dkt. No. 122-1 at ¶ 49 (“I understand
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`that direct infringement of a method claim means that the defendant must perform each step of the
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`method claim within the United States.”). Further, the entirety of the quote relied on by Comcast
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`belies its position. Dr. Almeroth says, “[i]t is my opinion that any ‘XFINITY X1 STB,’ that is,
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`capable of receiving remote tune requests from another device, infringes the Asserted Claims of
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`the Touchstream Patents, as addressed in more detail below and in the appendices to this report.”
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`Id. at ¶ 59. In Paragraphs 122 and 123 Dr. Almeroth does address his theory in more detail and
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`according to the law on method claims. The Court thus sees no basis for the relief that Comcast
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`seeks. The Motion should be DENIED.
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`III. CONCLUSION
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`A party’s failure
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`to file written objections
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`to
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`the findings, conclusions, and
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`recommendations contained in this report within 14 days bars that party from de novo review by
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`the District Judge of those findings, conclusions, and recommendations and, except on grounds of
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`plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted
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`and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v. United Servs. Auto.
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`Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). Any objection to this Report and
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`Recommendation must be filed in ECF under the event “Objection to Report and
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`Recommendations [cv, respoth]” or it may not be considered by the District Judge.
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