Engenium Solutions, Inc. v. Symphonic Technologies, Inc. (924 F. Supp. 2d 757, 2013)

United States District Court for the Southern District of Texas 2013-02-15

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MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court are the following Motions:

1)Plaintiff Engenium Solutions, Inc.’s (“Plaintiff’ or “Engenium”) Motion to Strike Defendants’ Expert Andrew Wright (“Motion to Strike Wright”) (Doc. No. 147);

2) Plaintiffs Motion to Strike Expert Dave Faiola (“Motion to Strike Faiola”) (Doc. No. 148);

3) Defendants Symphonic Technologies, Inc.’s (“Symphonic”) and Steve Carr’s (“Carr”) (collectively “Defendants”) Motion to Exclude Testimony and Expert Report of Krishna Muppavarapu (“Motion to Exclude Muppavarapu”) (Doc. No. 136);

4) Defendants’ Motion to Exclude the Opinions and Conclusions of Chris W. Johnson (“Motion to Exclude Johnson”) (Doc. No. 137);

5) Plaintiffs Partial Motion for Summary Judgment on Copyright Liability and Request for Permanent Injunction (“Partial Motion for Summary Judgment”) (Doc. No. 134); and

6) Defendants’ Motion for Summary Judgment. (Doc. No. 138.)

After considering the Motions, all responses thereto, and the applicable law, the Court finds that:

1) Plaintiffs Motion to Strike Wright (Doc. No. 147) must be GRANTED;

2) Plaintiffs Motion to Strike Faiola (Doc. No. 148) must be GRANTED;

3) Defendants’ Motion to Exclude Muppavarapu (Doc. No. 136) must be DENIED;

4) Defendants’ Motion to Exclude Johnson (Doc. No. 137) must be DENIED;

5) Plaintiffs Partial Motion for Summary Judgment (Doc. No. 134) must be GRANTED; and

6) Defendants’ Motion for Summary Judgment (Doc. No. 138) must be GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

In 2006, Kartik Shetty (“Shetty”) and Carr partnered to develop scheduling software that would work in conjunction with SAP, a family of scheduling and maintenance software programs used worldwide by many businesses. (Doc. No. 138-5, Carr Decl. ¶¶ 4-5; Doc. No. 123, Expert Report of Krishna Muppavarapu, at 6.) They envisioned that Carr would be responsible for the business and design aspects, and Shetty would develop the actual code for the software. (Doc. No. 138-5, Carr Decl. ¶ 4; Doc. No. 134, Ex. I, Shetty Dep. 83:19-21, 89:3-8.) In October 2006, they formed Engenium. (Doc. No. 138-5, Carr Decl. ¶ 5.) During the time that Carr worked for Engenium, Engenium Scheduling Workbench (“Scheduling Workbench”) was developed and sold. (Doc. No. 2, Am. Compl. ¶¶ 9-11; Doc. No. 48, Answer ¶¶ 9-II.)

Scheduling Workbench is a customized scheduling and maintenance tool that is compatible with SAP but also provides additional features that SAP software does not offer. (Muppavarapu Report, at 6-9; Doc. No. 134, Ex. F, Expert Report of Gary Grant, 6-8.) Because SAP is utilized by a wide range of industries, SAP software may not meet some of the needs of a particular company. (Muppavarapu Report, at 7; Grant Report, 4.) Third-party developers like Engenium identify industry- or customer-specific needs that SAP’s software does not address, and develop SAP-compatible software to meet those needs. (Muppavarapu Report, at 7.)

Scheduling Workbench enhances an organization’s ability to perform maintenance efficiently. (Muppavarapu Report, at 8-9; Grant Report, 7-8.) SAP has its own software, SAP Plant Maintenance (“SAP PM”), that also schedules personnel to perform maintenance in a streamlined and coordinated fashion. (Muppavarapu Report, at 8; Grant Report, 7.) However, Engenium’s software provides several features that SAP PM does not, including: (1) a single screen that presents all of the necessary data for planning and scheduling; (2) numerous Key Performance Indicator (“KPI”) reports, which allow for better measurement and management of plant processes; (3) importation of data out of Scheduling Workbench and into Microsoft Excel, which allows the schedule to be displayed in a Gantt chart, a useful visual tool for scheduling work; (4) importation of data out of Scheduling Workbench and into Microsoft Project, a more user-friendly program, where data can be manipulated and then imported back into Scheduling Workbench; and (5) a customized material availability check feature that includes additional options not present in SAP PM’s material availability check. (Muppavarapu Report, at 19, 23, 26; Grant Report, 6-8.)

In order to be able to develop this customized, SAP-compatible software, Engenium executed a Development License Agreement (“DLA”) with SAP AG, the manufacturer of the SAP family of products. (Doc. No. 163-1, DLA; Muppavarapu Report, at 6.) The DLA grants Engenium a license to use SAP’s software. (DLA, at 1.) The DLA recognizes that the licensee such as Engenium may develop several types of SAP-compatible programs, including add-ons, enhancements, and modifications. (Id. ¶¶ 1.1, 1.7, 1.12, 2.3.2, 2.3.3.) The DLA defines these licensee programs as follows:

1.1 ‘Add-on’ means any developments utilizing the SAP development environment, SAP published APIs and/or libraries to create a new object that adds new and independent functionality, and branches off from the published SAP APIs and/or user exits (e.g. new functional components for business processes not covered by the Software constitute Add-ons; however, standalone interface code from SAP software to non software is not considered an Add-on).

1.7 ‘Enhancement’ means a development utilizing the SAP development environment, SAP published APIs and/or libraries to create a new object supporting an existing business scenario that customizes, enhances or changes in any other way existing SAP functionality (e.g. the creation of new APIs, alternative user interfaces, additional business content within existing functionality, and/or the extension of data structures or metadata all constitute enhancements.) [sic ]

1.12 ‘Modification’ means an alteration to the Software (e.g. a change made to the source code, metadata, etc) [sic] in which original SAP content is replaced with the modified content.), [sic ]

(Id. ¶¶ 1.1, 1.7, 1.12.) The DLA provides that, “ownership of Modifications and Enhancements, and any Intellectual Property Rights embodied therein, shall vest with SAP.” (Id. ¶ 2.3.2.1.) It specifically states that Engenium “irrevocably assigns to SAP all Licensee’s rights, title and interest (‘Assigned Intellectual Property Rights’) in and to the Modifications and Enhancements, including the right to register or file proprietary rights based on the Modifications and Enhancements.” (Id.) In contrast, the DLA provides that, “[t]he ownership of Add-ons shall vest in Licensee, or the end customer if so provided in the agreement between Licensee and end customer.” (Id. ¶ 2.3.3.)

Defendants contend that numerous features of Scheduling Workbench are enhancements or modifications within the meaning of the DLA. (Doc. No. 163, Defs.’ Reply to PL’s Resp. to Defs.’ Mot. for Summ. J. (“Defs.’ Reply”), at 3-5.) Plaintiff contends that Scheduling Workbench is actually an Add-on, and provides documentation from SAP showing that SAP certified Scheduling Workbench as a SAP Add-on. (Doc. No. 173, Pl.’s Surreply to Defs.’ Reply to PL’s Resp. to Defs.’ Mot. for Summ. J. (“PL’s Surreply”), 3-5; Doc. No. 173-2, SAP Integration Certificate; Doc. No. 173-3, SAP Add-on Test Report for Interface Certification.)

Defendants also contend that several other aspects of Scheduling Workbench which may be Add-ons are actually owned by ConocoPhillips, a customer of Engenium’s. (Doc. No. 138, Defs.’ Mot. for Summ. J., at 8-10; Defs.’ Reply, at 5-7.) In 2008, ConocoPhillips and Engenium executed a Master Software License, Maintenance and Service Agreement (“MLA”) granting ConocoPhillips a license to use Scheduling Workbench. (Doc. No. 158, MLA; Doc. No. 138-5, Carr Decl. ¶¶ 10-11.) The MLA provides as follows:

18.2 Ml copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created by Licensor during the course of performing work for Licensee (collectively the ‘Work Product’) shall belong exclusively to Licensee and shall, to the extent possible, be considered a work made for hire for Licensee within the meaning of Title 17 of the United States Code. To the extent the Work Product may not be considered work made for hire for Licensee, Licensor agrees to assign, and hereby assigns at the time of creation of the Work Product, without any requirement of further consideration, any right, title, or interest Licensor may have in such Work Product.

(MLA ¶ 18.2.) Defendants present email communications and invoices indicating that at least some of the features of Scheduling Workbench were added per ConocoPhillips’ request. (Doc. No. 163-2, August 4, 2009 Email from Carr to Conoco-Phillips; Doc. No. 163-3, March 23, 2012 ConocoPhillips Service Order.)

Engenium points out that the MLA specifically provides that ConocoPhillips will possess only a license to use Scheduling Workbench and any subsequent updates, versions or releases of Scheduling Workbench. (Doc. No. 176, Pl.’s Second Surreply to Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (“Pl.’s Second Surreply”), at 3-5.) They rely on a provision of Schedule A of the MLA, which provides as follows:

Licensed Programs licensed to Licensee shall be listed herein and defined as a machine executable version of such Licensed Programs and shall be deemed to include (i) the information and data contained in the relevant media, (ii) the reference manual, the programming tutorial and the installation guide (to be included where applicable) and any subsequent Updates, Versions or Releases of such materials provided to Licensee by Licensor and (iii) any other platform specific proprietary and confidential materials that Licensor may provide to Licensee in connection herewith. The license granted shall not extend beyond or include any material or Licensed Programs other than the material and Licensed Programs expressly and specifically set forth herein.

(MLA, Ex. A, at 1 (emphasis added).) “Updates” are defined as “corrections or improvements to the Licensed Program which result from notifications submitted by Licensee or internally initiated by Li-censor.” (Id. ¶ 15.4.) “Versions” are defined as “significant functional and/or technical Improvements requiring redesign and redevelopment of a major component of the Licensed Program into a new technology environment.” (Id.) “Releases” are defined as “functional refinements and/or technical improvements to the Licensed Program within the technology environment in which the Licensed Program is functioning.” (Id.) Plaintiff contends that the changes made to Scheduling Workbench are updates, versions, or releases. (PL’s Second Surreply, at 3-5.)

Over time, Shetty and Carr’s relationship became strained, and on August 18, 2010, Carr resigned from Engenium. (Doc. No. 138-5, Carr Decl. ¶¶ 8, 14; Doc. No. 134, PL’s Partial Mot. for Summ. J. ¶ 19.) On July 26, 2010, just prior to resigning, Carr removed $64,687.50 from Engenium’s bank account. (Doc. No. 150-10, Engenium’s Checking Account History, at 1; Doc. No. 138-5, Carr Decl. ¶ 15.) The amount Carr removed was precisely half of a support fee paid by ConocoPhillips that same day. (Doc. No. 150, PL’s Br. In Support of Its Resp. and Opposition to Defs.’ Mot. for Summ. J. (“PL’s Resp.”), at 21; Engenium’s Checking Account History, at 1.) Carr contends that, for over a year, he provided support and training to ConocoPhillips without compensation, and this amount constituted his rightful share of the proceeds. (Doc. No. 138-5, Carr Decl. ¶ 15.) Engenium claims that the $129,375.00 payment made by ConocoPhillips on July 26, 2010 was actually support fees for the upcoming year. (PL’s Resp., at 21.) Engenium attaches two invoices, one dated July 19, 2009, for “annual support” for Scheduling Workbench from June 1, 2009 through May 31, 2010, and another dated May 10, 2010, for an “Annual Service agreement.” (Doc. No. 150-12, July 19, 2009 Invoice; Doc. No. 150-13, May 10, 2010 Invoice.)

Before his resignation, on August 10, 2010, Carr filed a Certificate of Formation for Symphonic. (Doc. No. 150-11, Certificate of Formation.) Symphonic also developed SAP-compatible scheduling software, Harmonix. (Doc. No. 138-5, Carr Decl. ¶¶ 18; Doc. No. 134, PL’s Partial Mot. for Summ. J. ¶ 21; Doc. No. 134, Ex. H, Harmonix User Guide.) Almost immediately after Carr resigned from Engenium, he negotiated a contract between Symphonic and Kraton Ploymers, a company he was previously negotiating with on behalf of Engenium. (Doc. No. 150, Pl.’s Resp., at 20; Doc. No. 150-8, Aug. 10, 2010-Aug. 17, 2010 Emails between Carr and representative of Kraton Polymers (signature line indicating that Carr was emailing in his capacity as a representative of Engenium); Doc. No. 150-9, Aug. 20, 2010 Emails between Carr and representative of Kraton Polymers (email address indicating Carr was negotiating on behalf of Symphonic).)

Carr and Iain Ross, a SAP consultant who Carr had previously hired to perform work on Scheduling Workbench, continued to service ConocoPhillips on Engenium’s behalf for at least a brief period of time after Carr’s resignation. (Doc. No. 138-3, Ross Decl. ¶43; Doc. No. 138-5, Carr Deck ¶ 16; Doc. No. 156-4, Carr Decl. ¶¶ 6-7.) This work was performed at Shetty’s request. (Doc. No. 156-4, Carr Decl. ¶ 7; Doc. No. 156-7, Sept. 10, 2010 Email from Shetty.) As part of his support work, both before and after Carr’s resignation from Engenium, Ross maintained a copy of Scheduling Workbench on his personal server, DM0. (Doc. No. 156-4, Carr Decl. ¶¶ 6-7; Doc. No. 156-9, Feb. 11, 2010 Email from Shetty.) Around August 24, 2010, Shetty instructed Ross to delete the copy of Scheduling Workbench from his personal server, and perform all future Engenium support from Engenium’s server, DR1. (Doc. No. 138-3, Ross Decl., Ex. 5.) Ross informed Shetty that removal was complete the following day. (Doc. No. 138-3, Ross Decl. ¶ 44.) Sometime in the end of August 2010, Ross informed Shetty that he no longer wished to work for Engenium. (Id. ¶ 47.) Sometime in late August 2010, Carr offered Ross a position at Symphonic, which he accepted. (Doc. No. 138-3, Ross Decl. ¶ 50.) At some point in December 2010 or early 2011, Symphonic acquired the DM0 server. (Doc. No. 156-4, Carr Decl. ¶¶ 5-6.)

Like Scheduling Workbench, Harmonix (1) presents all relevant data for planning and scheduling on a single screen; (2) comes with standard KPI reports; (3) offers the capability to import of data out of Scheduling Workbench and into Microsoft Excel; (4) offers the capability to import of data out of Scheduling Workbench and into Microsoft Project; and (5) includes a customized material availability check. (Muppavarapu Report, at 19-28; Grant Report, 6-8.) Plaintiffs expert, Krishna Muppavarapu, identified a number of similarities in the source code of Harmonix and Scheduling Workbench, including: (1) code for a Scheduling Workbench program that schedules work orders and operations and a Harmonix program that performs the same functions is virtually identical; (2) there are numerous shared non-functional characteristics, such as identical line breaks, spacing, indentation, identical loading language and identical timing of loading message, and data beginning to populate into a Microsoft Excel spreadsheet at the same arbitrary line number; (3) some of Harmonix’& obsolete code is identical to active code in Scheduling Workbench; (4) Harmonix’s customized material availability feature contains active code for four of the five buttons found in Scheduling Workbench’s material availability check, and Harmonix contains obsolete code for the fifth button in Scheduling Workbench; (5) Harmonix’s material availability check contains identical obsolete code as Scheduling Workbench’s material availability check; (6) Harmonix and Scheduling Workbench contain the same variables, and an older version of Harmonix defines thirteen variables that are never referenced in Harmonix’s code, but are referenced in Scheduling Workbench’s code; and (7) identical typographical errors in identical locations in both Harmonix and Scheduling Workbench’s source code. (Muppavarapu Report, at 16-23, 26-36; Muppavarapu Report, at Ex. G; Muppavarapu Report, at Ex. I; Muppavarapu Report, at Ex. M.)

Defendants, relying on expert reports of Andrew Wright and Dave Faiola, point out that software programs like Harmonix and Scheduling Workbench will often have similar functionality and code because they are designed to be compatible with SAP and are, at least in part, derived from SAP-supplied code. (Defs.’ Mot. for Summ. J., at 12-13; Doc. No. 138-6, Expert Report of W. Andrew Wright ¶ 6; Doc. No. 138-7, Expert Report of Dave Faiola ¶¶ 15, 23, 26, 33, 35.) They also argue that the evidence presented by Plaintiff cannot show substantial similarity between Harmonix and Scheduling Workbench because Muppavarapu considers less than 5% of the code of Scheduling Workbench and 1% of the code of Harmonix. (Defs.’ Mot. for Summ. J., at 16-17; Doe. No. 138-3, Ross Decl. ¶¶ 3-4.) Defendants’ experts also point to several functional and code-level differences between the programs, including: (1) Harmonix can run certain reports that Scheduling Workbench cannot; (2) Harmonix has a feature that allows automatic “leveling” (efficient allocation) of work orders against available craftsmen, whereas Scheduling Workbench does not; and (3) Harmonix and Scheduling Workbench have different selection screens for entering data. (Doc. No. 138-6, Wright Report ¶¶ 9-14; Doc. No. 138-7, Faiola Report ¶¶ 24-32.)

Plaintiff now moves for partial summary judgment on its copyright infringement claims, arguing that Defendants infringed on, and continue to infringe on, Plaintiffs exclusive right to reproduce under 17 U.S.C. § 106(1), Plaintiffs exclusive right to prepare derivative works under 17 U.S.C. § 106(2), and Plaintiffs exclusive right to distribute copies under 17 U.S.C. § 106(3). (Pl.’s Partial Mot. for Summ. J., at 10-27.) Plaintiff seeks an injunction and actual damages arising from Defendants’ alleged infringement. (Id. at 27-30.) Defendants also move for summary judgment on Plaintiffs copyright infringement claims, arguing that Plaintiff does not own the allegedly infringed code and, in any event, Harmonix and Scheduling Workbench are not substantially similar. (Defs.’ Mot for Summ. J., at 8-18.) Additionally, Defendants move for summary judgment on Plaintiffs state law causes of action, which include unfair competition/ breach of fiduciary duty, misappropriation of trade secrets, conversion, tortious interference with contract. (Id. at 18-30.) Both parties also filed several Motions to Exclude and Motions to Strike each other’s experts. (Mot. to Strike Wright; Mot. to Strike Faiola; Mot. to Exclude Muppavarapu; Mot. to Exclude Johnson.)

The Court turns to the Motions to Exclude and Motions to Strike first. The Court then considers both parties’ Motions for Summary Judgment on copyright infringement. Finally, the Court addresses Defendants’ Motion for Summary Judgment on state law claims.

II. MOTIONS TO STRIKE AND MOTIONS TO EXCLUDE

A. Legal Standard

Federal Rule of Evidence 702 provides for the admission of expert testimony that assists the trier of fact to understand the evidence or to determine a fact in issue. A court is charged with a “gatekeeping function” to ensure expert testimony is both reliable and relevant. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Testimony is reliable if: (1) it is based upon sufficient facts or data, (2) it is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the ease. Fed.R.Evid. 702. In Daubert, the Supreme Court provided several nonexclusive factors to guide courts in evaluating the reliability of a methodology. Those factors include whether the theory can be and has been tested; whether the theory has been subjected to peer review and publication; the theory’s known or potential rate of error; the existence and maintenance of standards and controls; and whether the theory is generally accepted. 509 U.S. at 593-94, 113 S.Ct. 2786. The test for determining reliability is flexible and can adapt to the particular circumstances underlying the testimony at issue. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Further, the expert witness must be qualified “by knowledge, skill, experience, training, or education .... ” Fed. R.Evid. 702. A court must exclude an expert witness “if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999). However, “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009) (citing Daubert, 509 U.S. at 596, 113 S.Ct. 2786).

The party seeking to rely on expert testimony bears the burden of establishing, by a preponderance of the evidence, that all requirements have been met. Daubert, 509 U.S. at 593, n. 10, 113 S.Ct. 2786; Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998).

B. Motion to Strike Wright

Plaintiff argues that (1) Wright is not qualified, (2) his opinion is not reliable, and (3) his opinion is not relevant. Plaintiff also argues that Wright’s opinion should be excluded because it fails to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B). (See generally Doc. No. 147, Mot. to Strike Wright.)

1. Qualifications

Wright has worked as a SAP consultant, analyst and programmer since 1994, with a focus on plant maintenance and scheduling services. (Wright Report ¶ 2.) He was hired as an expert to review the functional characteristics and screen appearance of Engenium’s and Symphonic’s products. (Id. ¶ 1.) Plaintiff argues that Wright is not qualified because he does not have an engineering background. (Mot. to Strike Wright, at 3.) At the hearing held on the Motions to Strike and Motions to Exclude, Plaintiff also argued that Wright is unqualified because, while he has SAP experience, he has no experience comparing customized SAP software.

The mere fact that Wright does not have engineering training does not mandate his exclusion. See Fed.R.Evid. 702 advisory committee’s note (2000 Amendment) (“Nothing in this amendment is intended to suggest that experience alone- — or experience in conjunction with other knowledge, skill, training or education — may not provide sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience.”); see also S. Cement Co., Div. of Martin-Marietta Corp. v. Sproul, 378 F.2d 48, 49 (5th Cir.1967) (“As a general rule, (a) person may become qualified as an expert by practical experience. Professional education is not a prerequisite.”). Furthermore, that Wright does not purport to have a background in comparing customized SAP software also does not require exclusion. See Wellogix, Inc. v. Accenture, LLP, 788 F.Supp.2d 523, 537 (S.D.Tex.2011) (rejecting qualification challenge to expert in copyright case involving SAP software where he had “broad experience at the general level of computer design and programming in various programming languages and computer systems, and has developed experience with [the SAP programming language] specifically”); see also Huss v. Gayden, 571 F.3d at 452 (“Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.”) Wright has over eighteen years of experience with SAP, with a focus on SAP PM, the very program Harmonix and Workbench Scheduling customize. (Doc. No. 138-6, Wright Report ¶2.) The Court is satisfied that Wright’s experience qualifies him to be an expert.

2. Reliability

Wright conducted his analysis by dividing Harmonix and Scheduling Workbench into their three main functions: scheduling and backlog management, scheduling and backlog report, and schedule compliance. (Wright Report ¶ 8.) He then compared the components within each of these primary functions. (Id.) He includes a chart that explains the functionality and appearance differences between the two programs. (Id., Ex. A.) Plaintiff argues that Wright’s opinion is not reliable because he does not explain what data he used to reach his conclusions, which makes his conclusions unverifiable. (Mot. to Strike Wright, at 3-6.) Defendants respond that Wright conducted his comparison of the functional aspects of Harmonix and Scheduling Workbench in the only reliable manner conceivable: a side-by-side comparison of the programs. (Doc. No. 166, Resp. to PL’s Mot. to Strike Wright, at 2-3.)

The Court must agree with Plaintiff that Defendants have not met their burden to show that Wright employed a reliable methodology. The Court acknowledges that the Daubert factors may be ill-suited to assessing the reliability of the methodology employed by an expert comparing the features of two pieces of software. See Kumho Tire, 526 U.S. at 150-51, 119 S.Ct. 1167 (recognizing that the “factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony”). However, Defendants must provide some evidence of reliability of the method employed by their expert. The report does not indicate how Wright decided which components to compare, or how much time he spent comparing them. Indeed, the report does not explain how, exactly, Wright compared the features of the programs at all. (See Wright Report ¶ 8.) Furthermore, Wright does not explain on what basis he concluded when features in the two programs performed different functions; there are no supporting screen-shots or reports produced by the two competing programs to support his conclusions. The Court has simply not been presented with any evidence of the reliability of Wright’s methodology. Accordingly, the Court must exclude Wright’s report and testimony.

For the reasons stated above, Plaintiffs Motion to Strike Wright is GRANTED. The Court need not reach the remainder of Plaintiffs challenges to Wright’s report.

C. Motion to Strike Faiola

Plaintiff argues that (1) Faiola is not qualified, (2) his opinion is not reliable, and (3) his opinion is not relevant. Plaintiff also argues that Faiola’s opinion should be excluded because it fails to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B). (See generally Doc. No. 148, Mot. to Strike Faiola.)

1. Qualifications

Dave Faiola has worked as a SAP consultant, analyst and programmer since 1995. (Faiola Report ¶ 2.) He primarily provides SAP consulting and programming services. (Id.) Based on his experience, he is familiar with the standards SAP supplies to licensees to use in custom solutions like the scheduling tools at issue here. (Id. ¶ 3.) He was hired to compare the source codes of Engenium’s Scheduling Workbench and Symphonic’s Harmonix. (Id. ¶ 1.)

Plaintiff argues, briefly, that Faiola is not qualified to render some of the opinions in his report because they are legal conclusions. (Mot. to Strike Faiola, at 3.) The Court disregards those portions of Faiola’s report that offer legal conclusions as to whether Scheduling Workbench and Harmonix are • “substantially similar.” (See, e.g., Faiola Report ¶ 35.) Plaintiff does not challenge Faiola’s qualifications to provide expert opinion about the source codes of Scheduling Workbench and Harmonix. Furthermore, the Court does not doubt that Faiola’s extensive experience as a SAP consultant, analyst and programmer qualifies him to testify about similarities and differences in the source code of SAP customization software.

2. Reliability

Faiola inspected Harmonix and Scheduling Workbench for approximately nine hours in connection with his duties as an expert. (Faiola Report ¶ 4.) The methodology he employed was to compare the current and earliest versions of Symphonic’s software, ascertain what he considered to be the “original code,” and compare that “original code” against Engenium’s corresponding component. (Id. ¶ 8.) His analysis focused on source code for Scheduling, Compliancy and Reporting and for two Function Modules. (Id. ¶ 7.) Plaintiff argues that Faiola’s report is not reliable because (1) Faiola has not explained the methodology or procedures utilized, making his conclusions unverifiable, and (2) he does not attach any exhibits showing portions of Scheduling Workbench, Harmonix, or SAP code analyzed. (Mot. to Strike Faiola, at 3-5.) Defendants respond that the methodology employed by Faiola is a side-by-side comparison, and is, in fact, the same methodology Plaintiffs expert used. (Doc. No. 167, Defs.’ Resp. to Mot. to Strike Faiola, at 2-3.) They further note that challenges to the fact that Faiola used the oldest version of Symphonic go to credibility, not admissibility, of the expert. (Id. at 3.)

For the same reasons the Court excludes Wright, the Court must also exclude Faiola. Defendants again do no more than merely assert that Faiola conducted a side-by-side comparison of Symphonic’s and Engenium’s software. Manually comparing code side-by-side is not an inherently unreliable methodology. See Computer Assocs. Int’l v. Quest Software, Inc., 333 F.Supp.2d 688, 694 (N.D.Ill.2004) (recognizing that “[t]here does not appear to be any perfect way to compare millions of lines of source codes,” and finding reliable expert’s method when expert “manually compared the source codes, directing his attention to the areas of the program in which [plaintiff] (and its attorneys) believed copying would be found”). However, bare assertions of a side-by-side comparison do not convince this Court that Faiola’s methodology is reliable. Indeed, as noted supra, Faiola’s report is far from clear as to his methodology; the Court cannot be sure whether Faiola is comparing Scheduling Workbench’s code to the earliest Harmonix’s code found on Symphonic’s server or to a code Faiola derived from numerous versions of Harmonix’s code. (See Faiola Report ¶ 8.) Nor does Faiola provide screenshots or excerpts of Scheduling Workbench, Harmonix, or SAP code that reveal the basis for his conclusions. (See generally Faiola Report.) Without some evidence that confirms the reliability of Faiola’s methodology, the Court must exclude his report and testimony.

For the reasons stated above, Plaintiffs Motion to Strike Faiola is GRANTED. The Court need not reach the remainder of Plaintiffs challenges to Faiola’s report.

D. Motion to Exclude Muppavarapu

Krishna Muppavarapu has over 14 years of experience in SAP Advanced Business Applications Programming (“ABAP”). (Muppavarapu Report, at 3.) He attended ABAP training and took a certification exam and was certified in ABAP. (Id.) He has developed several hundred new programs and has also modified several hundred existing programs. (Id. at 4.)

Muppavarapu reviewed the user manuals of Harmonix and Scheduling Workbench, and received a demonstration of Scheduling Workbench from Shetty. (Id.) He then spent three days inspecting Harmonix’ s code. (Id. at 10-11.) Muppavarapu took screenshots throughout his inspection, and then spent several days comparing screenshots of original and current versions of Harmonix to the real code of Workbench Solutions. (Id.) Defendants argue that Muppavarapu’s report must be excluded for lack of basis. (Mot. to Exclude Muppavarapu, at 4-5.) Specifically, they argue that the Harmonix code analyzed in Muppavarapu’s report amounts to only 1% of the total Harmonix code and 5% of Scheduling Workbench’s code, an insufficient factual basis from which to extrapolate copying. (Id.) They also challenge certain aspects of the report as miseharacterizations, arguing that some of the similarities identified by Muppavarapu are SAP standards. {Id. at 5-6.)

In Viterbo v. Dow Chemical Co., the Fifth Circuit explained that:

As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration. In some cases, however, the source upon which an expert’s opinion relies is of such little weight that the jury should not be permitted to receive that opinion. Expert opinion testimony falls into this category when that testimony would not actually assist the jury in arriving at an intelligent and sound verdict. If an opinion is fundamentally unsupported, then it offers no expert assistance to the jury.

826 F.2d 420, 422 (5th Cir.1987) (citations omitted). See also Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir.1991). “As the Court in Daubert makes clear, ... the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system: ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’” United States v. 14.38 Acres of Land, More or Less Situated in Leflore County, State of Miss., 80 F.3d 1074, 1078 (5th Cir.1996) (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786).

Defendants’ argument that Muppavarapu analyzes only 1% of Harmonix code goes to the weight of the report, not its admissibility. This is not a ease where the expert bases his opinions on facts that are of so little weight that his opinion should not be admitted at all. While 1% of Harmonix’s code is not a large amount, another district court has recognized that “[t]here does not appear to be any perfect way to compare millions of lines of source codes” and allowed focusing on those parts where copying is likely. Computer Assocs., 333 F.Supp.2d at 694. Courts that strike experts for lack of factual basis typically involve an expert who cannot point to any data supporting his opinion. See, e.g., Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904-05 (7th Cir.2007); cf. Rudd v. Gen. Motors Corp., 127 F.Supp.2d 1330, 1341 (M.D.Ala.2001) (admitting expert even though he had no direct evidence of his conclusion, and his opinion was based only on circumstantial evidence). Defendants’ contentions that Muppavarapu does not acknowledge that certain similarities identified in his report exist because SAP, not Engenium, owns portions of the code in both Harmonix and Scheduling Workbench also go to weight and credibility.

The Court declines to exclude Muppavarapu’s opinions on the grounds raised by Defendants. Rather, the Court finds that Muppavarapu’s report demonstrates compliance with the requirements of Federal Rule of Evidence 702. Accordingly, Defendants’ Motion to Exclude Muppavarapu is DENIED.

E. Motion to Exclude Johnson

Chris W. Johnson is a Senior Manager at UHY Advisors FLVS, Inc. (“UHY”). (Doc. No. 121, Expert Report of Chris W. Johnson, at 2-3.) He holds a master of science in economics from Texas A & M, is an accredited valuation analyst and has prior experience valuing software. (Id) He was retained by Plaintiff to quantify damages in this case. (Id at 1.) In assessing damages, Johnson has assumed that Engenium owns a valid copyright on Scheduling Workbench, and Defendants infringed Engenium’s copyright. (Id) In reaching his conclusions, he interviewed Shetty and reviewed various documents that shed light the likelihood that Engenium would have developed a relationship with customers Symphonic ultimately sold products and services to. (Id at 1, 6-10, Ex. B.) His damages figures are based on income Symphonic earned from sales of Harmonix to several companies that he concludes would have otherwise purchased Scheduling Workbench, plus likely maintenance contracts Engenium would have received from those companies, minus the additional cost Engenium would have had to incur to provide maintenance. (Id at 6-10, Attachment A.)

Defendants seek to exclude Johnson’s testimony because he assesses damages flowing from state law causes of action, over which Defendants argue this Court lacks jurisdiction. (Mot. to Exclude Johnson, at 2-4.) They also argue that Johnson’s opinions should be excluded because they lack adequate factual basis. (Id. at 6-9.) Specifically, they argue that Johnson improperly assumes certain facts about ownership and infringement, the length and relevance of potential maintenance agreements, and the likelihood that Symphonic’s customers would have purchased Scheduling Workbench but for purchasing the allegedly infringing Harmonix. (Id.)

To the extent that the Court lacks jurisdiction over any of Plaintiffs claims, Johnson’s report clearly sets out those damages that flow from alleged violations of state law rather than from copyright infringement. (See id. at 2.) With regard to Defendants’ argument that Johnson improperly assumes certain facts, as discussed supra Part II.D, challenges to the basis of an expert’s opinions generally go to the weight of the evidence. See Viterbo, 826 F.2d at 422; 14.38 Acres of Land, 80 F.3d at 1078. Furthermore, “experts are permitted to assume the underlying facts that form the basis for their opinions.” Cromwell v. Wal-Mart Stores, Inc., 46 Fed.Appx. 733, No. 02-30035, 2002 WL 1973906, at *2 (5th Cir. Aug. 9, 2002) (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786). Thus, Defendants’ arguments that Johnson’s analysis improperly factors in a number of assumptions, such as the length of maintenance agreements and the relationship of revenue earned from maintenance agreements to the alleged infringement, all go to the weight of his opinions, not to admissibility.

The Court declines to exclude Johnson’s opinions on the grounds raised by Defendants. Accordingly, Defendants’ Motion to Exclude Johnson is DENIED.

III. SUMMARY JUDGMENT MOTIONS

A. Legal Standard

To grant summary judgment, a court must find that the pleadings and evidence show that no genuine issue of material fact exists, and that the movant is therefore entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The party moving for summary judgment must demonstrate the absence of any genuine issue of material fact; however, the party need not negate the elements of the nonmovant’s case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Id. If the moving party meets this burden, the nonmoving party must then go beyond the pleadings to find specific facts showing there is a genuine issue for trial. Id. “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009) (citation omitted) (internal quotation marks omitted).

“Facts and inferences reasonably drawn from those facts should be taken in the light most favorable to the non-moving party.” Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir.2007). Courts may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed. R.Civ.P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.2008); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996) see also Liquid Air Corp., 37 F.3d at 1075 (noting that a nonmovant’s burden is “not satisfied with ‘some metaphysical doubt as to the material facts’ ”) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). However, “summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Liquid Air Corp., 37 F.3d at 1076 (citation omitted) (internal quotation marks omitted). A court should not, in the absence of proof, assume that the nonmoving party could or would provide the necessary facts. Id. at 1075.

B. Copyright Infringement

Plaintiff has moved for summary judgment on its copyright infringement claims, arguing that Engenium possesses a valid copyright on Scheduling Workbench and that Defendants’ Harmonix infringed on, and continues to infringe on, that copyright. (Pl.’s Partial Mot. for Summ. J., at 10-27.) Defendants have also moved for summary judgment on Plaintiffs copyright infringement claims, arguing that Plaintiff does not own the allegedly infringed code and, in any event, Harmonix and Scheduling Workbench are not substantially similar. (Defs.’ Mot for Summ. J., at 8-18.) To prevail on a copyright infringement claim, a plaintiff must prove (1) ownership of a valid copyright and (2) copying by the defendant. Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 400 (5th Cir.2000); Interplan Architects, Inc. v. C.L. Thomas, Inc., No. 08-cv-3181, 2010 WL 4366990, at *23 (S.D.Tex. Oct. 27, 2010).

i. Ownership

Copyright ownership is shown by: (1) proof of originality and copyright-ability, and (2) compliance with the applicable statutory requirements. Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 407-408 (5th Cir.2004); DeCastro, 220 F.3d at 400. Defendants do not argue that Plaintiff has failed to comply with applicable statutory requirements. “A certifícate of registration, if timely obtained, is prima facie evidence both that a copyright is valid and that the registrant owns the copyright.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004); Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir.1995) (citing 17 U.S.C. § 410(c)). Plaintiff has provided a copy of the certificate of registration listing Engenium as the author of Scheduling Workbench. (Doc. No. 134, Ex. B, Certificate of Registration.) However, a certificate of registration creates only a rebuttable presumption of validity; a defendant may dispute ownership by challenging the originality or copyright-ability of a plaintiffs work. Norma Ribbon, 51 F.3d at 47. Once the plaintiff provides a certificate of registration, the burden shifts to the defendants, who must demonstrate that “the work in which copyright is claimed is unprotectable (for lack of originality) or, more specifically, to prove that ... the copyrighted work actually taken is unworthy of copyright protection.” Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir.1999); CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir.1996).

1. Ownership of copyright

Defendants argue first that Plaintiff does not actually own the Scheduling Workbench code that Defendants allegedly copied. (Defs.’ Mot. for Summ. J., at 8-10; Defs.’ Reply, at 2-7.) Defendants argue that the DLA vests ownership of most of the allegedly infringed aspects of Scheduling Workbench in SAP, and the MLA transfers ownership of any remaining allegedly infringed aspects of Scheduling Workbench to ConocoPhillips. (Id.) Specifically, they contend that the DLA’s definitions of “enhancement” and “modification” apply to a number of the features of Scheduling Workbench, making those features the property of SAP. (Defs.’ Reply, at 2-5.) Accordingly, they contend, Engenium transferred its copyright ownership, as contemplated by 17 U.S.C. § 204. Plaintiff responds that courts have repeatedly held that alleged infringers not party to an agreement transferring copyright ownership may not avoid liability by invoking the agreement. (Pl.’s Surreply, at 6-7.) Plaintiff also argues that, in any event, the DLA vests ownership of Scheduling Workbench in Plaintiff, and the MLA makes clear that ConocoPhillips only owns a license to use any subsequent versions of Scheduling Workbench. (PL’s Surreply, at 3-5; PL’s Second Surreply, at 3-5.)

The Court concedes that, when read in a vacuum, the definition of “enhancement” in the DLA could potentially apply to some of the features of Scheduling Workbench, For instance, the material availability check feature “incorporates [SAP’s material availability] code into its component ... but customizes it with five new buttons to give additional features to the user.” (Muppavarapu Report, at 26.) Such a feature could be understood as “development utilizing the SAP development environment, SAP published APIs and/or libraries to create a new object supporting an existing business scenario that customizes, enhances or changes in any other way existing SAP functionality.” (DLA ¶ 1.7.) However, new icons that provide additional reports may also be considered a “development[ ] utilizing the SAP development environment, SAP published APIs and/or libraries to create a new object that adds new and independent functionality, and branches off from the published SAP APIs and/or user exits,” which would make Scheduling Workbench’s material availability check feature an add-on. (Id. ¶ 1.1; Muppavarapu Report, at 26.) The examples of enhancements provided in the DLA include “alternative user interfaces” and “additional business content within existing functionality.” (DLA ¶ 1.7 (emphasis added).) Additional icons that produce new reports do not fit neatly with these examples. Scheduling Workbench’s material availability feature is better understood as an add-on, because it offers new functionality. (See DLA ¶ 1.1.)

Defendants also contend that the capacity availability feature of Scheduling Workbench is an enhancement. (Defs.’ Reply, at 4.) The parties have not submitted sufficient information on this feature for the Court to determine whether it satisfies the definition of an enhancement under the DLA. The parties have told the Court only that the Scheduling Workbench capacity availability feature incorporates a SAP function module, but includes a custom variable and three custom lines of code. (Id.; Muppavarapu Report, Ex. J., at 13.) Because the parties have not presented evidence as to whether these customizations create new and independent functionality or whether they only enhance existing SAP functionality, the Court lacks a basis on which to determine if the feature is an enhancement or add-on.

However, this question of fact ultimately does not preclude the Court from resolving the parties’ infringement dispute. Plaintiff correctly points out that numerous courts, including this one, have held that alleged infringers may not avoid liability by arguing that a plaintiff does not own the copyright at issue due to defects in a copyright transfer agreement between the plaintiff and a non-party transferor. Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 592-93 (7th Cir.2003) (“[W]here there is no dispute between the copyright owner and the transferee about the status of the copyright, it would be unusual and unwarranted to permit a third-party infringer to invoke section 204(a) to avoid suit for copyright infringement.”); Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir.1995) (explaining that because the purpose of 17 U.S.C. § 204 “is to resolve disputes between copyright owners and transferees and to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses or copyright ownership,” a third-party infringer may not rely on § 204 in a suit for copyright infringement); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2nd Cir.1982); Fleming v. Miles, 181 F.Supp.2d 1143, 1158 (D.Or. 2001); Monroig v. RMM Records & Video Corp., 194 F.R.D. 388, 391 (D.P.R.2000); Wood v. B L Building Co., No. H-03-713, 2004 WL 5866352, at *6 (S.D.Tex. June 22, 2004).

In this case, unlike the above precedents, Defendants argue that the DLA and the MLA are valid transfer agreements, and Engenium has successfully transferred ownership to SAP and ConocoPhillips under 17 U.S.C. § 204. However, the precedents cited by Plaintiff are equally applicable; where there is no dispute between contracting parties as to the ownership of the copyright, a defendant accused of infringement may not avoid liability by arguing that the contract actually worked a transfer of ownership. See Billy-Bob, 329 F.3d at 592-93. SAP itself agrees that Scheduling Workbench is owned by Engenium, as evidenced by the fact that SAP certified Scheduling Workbench as an add-on. (Doc. No. 173-2, SAP Integration Certificate; Doc. No. 173-3, SAP Add-on Test Report for Interface Certification.) Because SAP agrees that Engenium is the owner of the copyright at issue, Defendants ought not be permitted to avoid liability by arguing that SAP actually owns the copyright. Thus, even if Defendants could produce evidence that would support their contention that the capacity availability feature of Scheduling Workbench falls under the definition of an enhancement under the DLA, such an argument is not an appropriate defense to a copyright infringement suit.

Defendants’ argument that Engenium transferred ownership of certain aspects of Scheduling Workbench to ConocoPhillips under the MLA fails for the same reasons. While it is not entirely clear from the MLA whether the changes made to Scheduling Workbench at ConocoPhillips’ request constitute “work product” owned by ConocoPhillips, or are merely “updates,” “versions,” or “releases” owned by Engenium (compare Doc. No. 158, MLA, Ex. A, at 1 with Doc. No. 158, MLA ¶ 15.4), the Court need not resolve the matter. Defendants may not rely on an agreement transferring copyright ownership to avoid liability in an infringement suit.

2. Validity of copyright

a. Originality

Defendants also challenge Engenium’s ownership by arguing that Scheduling Workbench is not original. (Defs.’ Mot. for Summ. J., at 10-13.) Specifically, Defendants argue that portions of Engenium’s source code are derived from SAP and are SAP-owned, and other portions of the code had been independently developed by Ross before he had been hired to do work for Engenium. (Id. at 12; Defs.’ Resp., at 13-14.) “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990)). The Supreme Court went on to explain that “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.” Id. (citation omitted). However, “copyright protection [extends] only to those components of a work that are original to the author.” CMM Cable Rep, 97 F.3d at 1516. Where a plaintiff has produced prima facie evidence of originality, “the presumption [of ownership] will not be overcome unless the defendant offers proof that the plaintiffs product was copied from other works or similarly probative evidence as to originality.” Id. at 1513 (citing Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 668-69 (3d Cir.1990)).

Plaintiff claims copyright infringement of Scheduling Workbench’s source code. (Pl.’s Partial Mot. for Summ. J., at 2, 19-26 (noting that the source code is at issue in this case, and analyzing similarities in source code between Scheduling Workbench and Harmonix-).) Because Plaintiffs claims involve infringement of the source code, and not other non-literal elements, the Court need only determine whether the source code of Scheduling Workbench is original and copyrightable.

The Court begins from the “well settled” proposition that “literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection.” Computer Assoc. Int’l v. Altai Inc., 982 F.2d 693, 706-11 (2d Cir.1992) (collecting cases); see also eScholar, LLC v. Otis Educ. Sys., Inc., No. 04 Civ. 4051(SCR), 2005 WL 2977569, at *17 (S.D.N.Y. Nov. 3, 2005) (“The literal elements of a program, like source and object code, are almost always found to be protectable expression.”). Thus, in seeking to rebut the presumption of originality created by the certificate of registration and argue that source code of a software program is not original or copyrightable, Defendants bear a heavy burden.

Defendants’ assertions that “the vast majority” of Scheduling Workbench is “SAP-derived and SAP-owned” cannot defeat the presumption of originality created by the certificate of registration. First, the only evidence Defendants cite in support of this argument are the expert reports of Wright and Faiola, which the Court has already ruled are not admissible. Furthermore, even if the reports were admissible, the portion of Faiola’s report cited actually states the very opposite: Faiola concludes that the source code of Engenium’s software is “custom written,” while Symphonic’s is derived from SAP standards. (Faiola Report ¶ 35.) The portion of Wright’s report cited also does not support the contention that the source code of Scheduling Workbench is owned by SAP. (Wright Report ¶ 15.) Defendants do not produce any evidence showing that Scheduling Workbench is nothing more than “SAP-derived and SAP-owned” code. See Norma Ribbon, 51 F.3d at 47 (“[A] work may be protected by copyright even though it is based on ... something already in the public domain if the author, through his skill and effort, has contributed a distinguishable variation from the older works.” (citation omitted)).

Nor do Defendants provide any evidence that the code for Scheduling Workbench’s Microsoft Project and Microsoft Excel punchout features is merely a copy of code Ross had previously developed. In support of this argument, Defendants cite to Ross’ declaration and emails between Shetty and Ross. (See Defs.’ Resp., at 14.) However, the portion of Ross’ declaration that is cited provides that Ross had a “basic solution in code” to the job posting Carr has posted, but goes on to state that he and Carr “set about developing the most efficient MSP and Excel enhancements we could to meet COP’s needs.” (Doc. No. 156-1, Ross Decl. ¶ 5.) This does not support the contention that Scheduling Workbench contains a mere copy of preexisting code; indeed, it suggests that while Ross possessed code which would be. a useful starting point for building certain features of Scheduling Workbench, Ross and Carr ultimately has to develop code to meet ConocoPhillips’ needs. The email string cited by Defendants provides only what appears to be a brief conceptual outline of a program Ross was developing for Engenium and indicates that Ross would “hunt around and look at my old documentation to see if I have anything useful.” (Doc. No. 156-10, Nov. 19, 2009 Emails between Shetty and Ross.) The Court fails to see the relevance of these emails.

The Court finds that Defendants have offered no evidence that Scheduling Workbench lacks the minimal degree of creativity necessary to qualify as an original work. See Feist, 499 U.S. at 345, 111 S.Ct. 1282.

b. Copyrightability

Defendants also contend that the source code Engenium claims is copyrighted is actually uncopyrightable scenes a faire. (Defs.’ Mot. for Summ. J., at 11-13; Defs.’ Resp., at 11-15.) Specifically, they argue that fine breaks, indentation, formatting, the commented out code, the material availability check feature, and the Microsoft Excel and Microsoft Project punchout features are all scenes a faire. (Defs.’ Resp., at 11-15.) Scenes a faire is defined as “expressions that are standard, stock or common to a particular subject matter or are dictated by external factors.” Eng’g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1344-45 (5th Cir.1994). “A programmer’s freedom of design choice is often circumscribed by extrinsic considerations such as ... compatibility requirements of other programs with which a program is designed to operate in conjunction^] ... demands of the industry being serviced[,] and ... widely accepted programming practices within the computer industry.” Computer As socs. Int’l v. Altai, Inc., 982 F.2d 693, 709-10 (2d Cir.1992). When external factors necessitate a certain expressive form, granting copyright to that expression “would effectively afford a monopoly to the first programmer to express those ideas.” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 838 (10th Cir.1993).

Defendants first argue that the line breaks, indentation, and formatting of Scheduling Workbench are dictated by external factors, specifically the use of a SAP formatting program. (Defs.’ Resp., at 12-13.) Plaintiffs expert, Muppavarapu, points out numerous places where spacing and indentation in Scheduling Workbench and Harmonix are identical. (Muppavarapu Report, at 17-20; Muppavarapu Report, Ex. G, at 4.) He states that “in my experience as a software programmer, no two developers can independently format their code as identically] as seen in Harmonix [and Scheduling Workbench.]” (Muppavarapu Report, at 18.) Ross explains that formatting in SAP programs is automatically performed by a SAP program called Pretty Printer. (Doc. No. 156-1, Ross Deck ¶ 12.) Accordingly, an issue of fact exists as to whether the formatting of both programs is the result of external factors.

Defendants next argue that the commented out code is scenes a faire because it is common practice for programmers to use code they previously personally developed. (Defs.’ Resp., at 13.) Defendants raise the same argument regarding the Microsoft Excel and Microsoft Project punchout features. (Id. at 14.) Defendants misunderstand the scenes a faire doctrine. The doctrine provides that expressions that are common to a particular subject or dictated by external factors are uncopyrightable. Eng’g Dynamics, 26 F.3d at 1344-45; see also Compaq Computer Corp. v. Ergonome, Inc., 137 F.Supp.2d 768, 777 (S.D.Tex.2001); Parker v. Outdoor Channel Holdings, No. 2-11-CV-00159-J, 2012 WL 6200177, at *3, *5 (N.D.Tex. Dec. 12, 2012). So, for instance, when widely accepted programming practices or industry needs mandate a given idea be expressed in a certain way, the code used to express that idea may be scenes a faire. Gates Rubber, 9 F.3d at 838; Compaq, 137 F.Supp.2d at 777; see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F][3][e] (2007). The Court is aware of no precedent suggesting that if professionals in a given field frequently recycle previously developed material, any recycled material is transformed into uncopyrightable scenes a faire.

Defendants also contend that the commented out code is based on SAP and Microsoft standards available to all programmers. (Defs.’ Resp., at 13.) The citation to Ross’ declaration in support of this statement says no such thing. (See id.; Doc. No. 156-1, Ross Deck ¶¶ 24-25.) Furthermore, even if the commented code is based on SAP and Microsoft standards, this fact alone would not make the commented out code uncopyrightable scenes a faire; only those portions of the source code that actually are SAP and Microsoft standard code would be scenes a faire. Defendants do not identify any such code in Harmonix or Scheduling Workbench.

Defendants raise a similar argument with regard to how data is populated into Microsoft Excel from Scheduling Work bench and Harmonix: they contend the data is populated in a similar way because Ross used samples provided by Microsoft. (Defs.’ Resp., at 14.) Again, the portion of Ross’ declaration Defendants cite says no such thing. (See id.; Doc. No. 156-1, Ross Decl. ¶¶ 5-7.) Ross does state in his declaratio