IP Law Daily, PATENT—Fed. Cir.: WhereverTV’s infringement lawsuit against Comcast Cable revived on appeal, (Jul 28, 2025)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

District court erred in its interpretation of key claim terms and in granting judgment of noninfringement as a matter of law.

The U.S. Court of Appeals for the Federal Circuit vacated a Florida district court’s grant of judgment as a matter of law (JMOL) of noninfringement in a high-stakes patent infringement suit filed by streaming technology company WhereverTV, Inc., against telecommunications giant Comcast Cable Communications, LLC. The Federal Circuit determined that the district court had incorrectly construed multiple disputed claim terms in WhereverTV’s streaming content management system and had improperly relied on the accused product in its analysis. The court also rejected Comcast’s cross-appeal asserting indefiniteness under 35 U.S.C. § 112 and remanded the case for trial on the question of infringement (WhereverTV, Inc. v. Comcast Cable Commc’ns, LLC, Nos. 23-2098, 23-2150 (Fed. Cir. July 28, 2025)).

Background. The plaintiff/appellant, WhereverTV, Inc., provides global internet-based streaming solutions to aggregate live television and on-demand content into a user-centric interface. The defendant/cross-appellant, Comcast Cable Communications, LLC, operates Xfinity X1, a widely-used entertainment platform that integrates traditional cable programming with internet-based streaming services in a unified guide interface.

In this lawsuit, WhereverTV asserted its U.S. Patent No. 8,656,431 (the ’431 patent), titled “Content Manager for Integration of Broadcast and Streaming Media,” which discloses a system using an internet-enabled interactive program guide (IPG) to aggregate video content from traditional cable operators (MSOs) and independent providers (non-MSOs). The core invention enables users to receive streaming content from multiple sources and to configure their program guide by adding or deleting channels from different providers. The asserted claim, independent claim 1, recites a content manager device comprising a network server, a user device, and an IPG application installed on that device. It includes several limitations, notably those requiring the application to provide a user-configurable IPG and to allow users to add or delete channels from MSO and non-MSO sources.

WhereverTV sued Comcast in the Middle District of Florida, alleging that Comcast's Xfinity X1 platform infringed claim 1 of the '431 patent. The case proceeded to trial after claim construction proceedings and denial of Comcast's indefiniteness defense. Following the close of evidence, the district court granted Comcast's Rule 50(a) motion for JMOL on the ground that WhereverTV failed to present evidence that the X1 platform satisfied the “adding or deleting” and “IPG application” limitations of claim 1. The court also reaffirmed its earlier constructions and reasoning. WhereverTV appealed the adverse JMOL, while Comcast cross-appealed the court’s rejection of its indefiniteness challenge and sought affirmance on alternative grounds.

Interactive Program Guide (IPG) limitation. The Federal Circuit concluded that the district court erred in holding that Comcast’s system did not meet the “interactive program guide application installed on the device” limitation. Relying on Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005), the court emphasized that the district court had failed to perform a proper claim construction analysis and had instead invoked an undefined “plain and ordinary meaning” standard without resolving the actual dispute. The appellate court further faulted the district court for improperly referencing Figures 4 and 8 of the patent to import limitations into the claim—an approach inconsistent with Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322 (Fed. Cir. 2006).

Rejecting Comcast’s argument that the IPG application must independently provide all IPG functionality, the court held that the term “provides” does not require sole operability. Instead, the claim is open-ended and encompasses collaborative functionality between the device and server. The appellate court underscored that the claim permits distributed operation and does not exclude implementations involving so-called “thin clients,” such as Comcast’s X1 set-top box receiver.

Adding or deleting channels limitation. The appellate court also reversed the district court’s narrow interpretation of the “adding or deleting” channels limitation. The lower court had construed these terms to require literal addition or removal of channels from the IPG user interface. However, the Federal Circuit concluded that the claim language more broadly allows for adding or deleting in the sense of enabling or disabling content availability through user actions such as subscribing or unsubscribing.

Citing O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351 (Fed. Cir. 2008), the appellate court reiterated that courts must resolve disputes about claim scope and that terms of art must be interpreted in light of the intrinsic record. The court found that the patent specification, particularly its discussion of Figure 8, equated subscribing to new content with adding a channel. It further noted that the claims do not require a change to the visible interface as a condition of adding or deleting. Accordingly, Comcast’s system could meet this limitation through its authentication and subscription mechanisms.

“Distinct from” limitation. Comcast argued that the claim’s requirement that the server be “distinct from” at least one MSO and one non-MSO must be understood in corporate ownership terms and that its own servers were not distinct because they were part of Comcast’s infrastructure. The Federal Circuit rejected this interpretation, affirming the district court’s functional reading: “distinct” refers to operational separation rather than legal or corporate independence.

The court noted that Comcast’s reading would render the term difficult to apply and potentially indefinite, a concern that undermined its plausibility. The appellate court endorsed the district court’s earlier conclusion that the patent’s focus was on functional independence of the server, not its ownership, and that WhereverTV’s reading was consistent with the specification and expert testimony.

Indefiniteness challenge. Comcast’s cross-appeal also raised the issue of indefiniteness, arguing that the term “only or virtually entirely” in the phrase “streaming video programming” was too vague to satisfy 35 U.S.C. § 112. The Federal Circuit, however, affirmed the district court’s determination that this term was not indefinite. Referring to One-E-Way, Inc. v. Int’l Trade Comm’n, 859 F.3d 1059 (Fed. Cir. 2017), the court held that “virtually” is a permissible term of degree and that a skilled artisan could understand its scope in the context of the patent.

The court found that the specification, read in light of expert understanding, adequately explained that “virtually entirely” streaming refers to a channel being mostly or wholly dependent on internet-based transmission. The fact that Comcast had proposed a detailed construction at claim construction further undermined its argument that the term lacked objective boundaries.

Conclusion. In light of the corrected claim constructions, the Federal Circuit vacated the JMOL of noninfringement and remanded the case for a new trial. The court noted that Comcast had preserved at least one other validity defense to be addressed on remand.

The Case is Nos. 23-2098 and 23-2150.

Judge: Stoll, K.

Attorneys: Adam Cooper Sanderson (Reese Marketos LLP) for WhereverTV, Inc. Robert Niles-Weed (Weil, Gotshal & Manges LLP) for Comcast Cable Communications, LLC.

Companies: WhereverTV, Inc.; Comcast Cable Communications, LLC

Cases: Patent TechnologyInternet FedCirNews FloridaNews