Wherevertv, Inc. v. Comcast Cable Communications, LLC

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WHEREVERTV, INC.,
Plaintiff-Appellant
v.
COMCAST CABLE COMMUNICATIONS, LLC,
Defendant-Cross-Appellant
______________________
2023-2098, 2023-2150
______________________
Appeals from the United States District Court for the
Middle District of Florida in No. 2:18-cv-00529-WFJ-NPM,
Judge William F. Jung.
______________________
Decided: July 28, 2025
______________________
ADAM COOPER SANDERSON, Reese Marketos LLP, Dal-
las, TX, argued for plaintiff-appellant. Also represented by
BRETT ROSENTHAL.
ROBERT NILES-WEED, Weil, Gotshal & Manges LLP,
New York, NY, argued for defendant-cross-appellant. Also
represented by MARK ANDREW PERRY, Washington, DC;
DAVID LISSON, ASHOK RAMANI, Davis Polk & Wardwell
LLC, Menlo Park, CA.
______________________
Case: 23-2098 Document: 67 Page: 1 Filed: 07/28/2025

-- 1 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 2
Before TARANTO, STOLL, and STARK, Circuit Judges.
STOLL, Circuit Judge.
WhereverTV, Inc. sued Comcast Cable Communica-
tions, LLC for patent infringement in the United States
District Court for the Middle District of Florida, and the
case proceeded to a jury trial on infringement of claim 1 of
U.S. Patent No. 8,656,431. After the close of evidence but
prior to a jury verdict, however, the district court granted
Comcast’s motion for judgment of noninfringement as a
matter of law under Rule 50(a) of the Federal Rules of Civil
Procedure. WhereverTV appeals the district court’s JMOL,
alleging that it rests on erroneous constructions of two
terms in claim 1. As an alternative ground for affirmance,
Comcast argues that it is entitled to JMOL based on what
it asserts is the correct interpretation of a separate claim
term, and it cross-appeals the district court’s determina-
tion that claim 1 is not indefinite under 35 U.S.C. § 112.
Because we agree with WhereverTV that the district court
erred in its claim construction, and we reject Comcast’s al-
ternative grounds for affirmance as well as its argument
that claim 1 is indefinite, we vacate the district court’s
JMOL of noninfringement and remand for proceedings con-
sistent with this opinion.
BACKGROUND
The ’431 patent discloses “[a] system and device . . .
that employs a global interactive program guide [(‘IPG’)] to
receive, access, manage, and view digital entertainment
services such as live television, television on demand, and
pre-recorded video and audio programming from one or
more content sources, via an internet-enabled device, any-
where in the world.” U.S. Patent No. 8,656,431 Abstract.
The content sources include not only cable operators but
also independent content providers. The ’431 patent states
that its “goal is to shift the control of content availability,
organization, and access from MSO’s [(i.e., multi-system
operators)], which is today’s cable television model, to a
Case: 23-2098 Document: 67 Page: 2 Filed: 07/28/2025

-- 2 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 3
new user-centric model where the user can choose whether
or not to purchase content from a content consolidator or
directly from independent content providers.” Id. at col. 6
ll. 39–44. The specification explains that, at the time of the
invention, there was “no application or interface that
[would] allow[] a user to manage multiple subscriptions
from multiple content owners in an easy to use format.” Id.
at col. 2 ll. 36–38.
As explained below, the district court relied on patent
Figures 4 and 8 in construing claim 1 at JMOL. Figure 4
(reproduced below) is a graphical representation of the
functions of an IPG that is “comprised of eight Core Appli-
cation Functions 300 and fifteen Core Application Fea-
tures 320, which may be used in whole, or in parts, to
present content to the user.” Id. at col. 11 ll. 17–21; see also
id. at col. 11 l. 22–col. 13 l. 7. Figure 8 is a flow chart that
illustrates the logic undertaken by a user to add new con-
tent to the IPG. See id. at col. 15 l. 13–col. 16 l. 7.
Id. Fig. 4.
Case: 23-2098 Document: 67 Page: 3 Filed: 07/28/2025

-- 3 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 4
The sole asserted claim, independent claim 1, reads:
1. A content manager device comprising:
a server resident on a network containing descrip-
tive program data about video content available
from one or more multiple cable system operators
(MSOs) and one or more non-MSOs;
a device capable of establishing and maintaining a
connection with the network via a communications
link; and
an interactive program guide application installed
on the device that provides user-configurable inter-
active program guide (IPG) listing at least one
channel of video content available from each of the
one or more MSOs and each of the one or more non-
MSOs and descriptive program data from the
server for the video content available on each of the
channels, wherein each of the channels is selectable
for receiving only or virtually entirely streaming
video programming from its respective MSO or
non-MSO source via the communications link and
the network; wherein the server is distinct from at
least one of the one or more MSOs and one or more
non-MSOs, and wherein the application allows for
the IPG to be configured by a user with respect to
adding or deleting channels from any of the one or
more MSOs or the one or more non-MSOs.
Id. at col. 16 ll. 32–54 (emphases added to emphasize limi-
tations at issue).
WhereverTV accused Comcast’s entertainment plat-
form known as the Xfinity X1, which allows users to access
video content from both their cable provider and streaming
providers through a cloud-based system, of infringing
claim 1 of the ’431 patent. The X1 system includes the
XRE receiver, which is an application located on the X1 set-
top box (or “STB”) device, and the cloud-based XRE server.
Case: 23-2098 Document: 67 Page: 4 Filed: 07/28/2025

-- 4 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 5
Comcast’s documentation illustrates the division of its sys-
tem:
J.A. 15921. The same document describes the division of
the XRE receiver and server:
J.A. 15922.
At the claim construction stage before the district
court, the parties disputed seven terms: (1) “multiple cable
system operators (MSOs)”; (2) “non-MSOs”; (3) “wherein
the server is distinct from at least one of the one or more
MSOs and one or more non-MSOs”; (4) “only or virtually
entirely streaming video programming”; (5) “wherein each
of the channels is selectable for receiving only or virtually
entirely streaming video programming”; (6) “interactive
Case: 23-2098 Document: 67 Page: 5 Filed: 07/28/2025

-- 5 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 6
program guide”; and (7) “adding or deleting channels from
any of the one or more MSOs or the one or more non-
MSOs.” See WhereverTV, Inc. v. Comcast Cable Commc’ns,
LLC, No. 2:18-cv-529-FTM-NPM, 2020 WL 13823257,
at *3 (M.D. Fla. Nov. 13, 2020) (“Claim Construction Or-
der”). The district court construed “multiple cable system
operators (MSOs)” to mean “a cable, satellite, or Internet
television content consolidator that receives and then
broadcasts channels of video content,” and “non-MSOs” to
mean “a video content provider that does not act like an
MSO because it does not receive and then broadcast chan-
nels of video content.” Id. As for the remainder of the dis-
puted terms, the district court determined that “[n]o
further construction is necessary.” Id.
Comcast also contended that the term “only or virtually
entirely streaming video programming” was indefinite un-
der 35 U.S.C. § 112. But the district court determined that
“these words can be understood by those skilled in the art,
particularly since Comcast itself was able to propose a con-
struction for [‘wherein each of the channels is selectable for
receiving only or virtually entirely streaming video pro-
gramming,’] which contains the same language.” Id. Spe-
cifically, Comcast proposed interpreting “wherein each of
the channels is selectable for receiving only or virtually en-
tirely streaming video programming” as: “wherein each of
the channels is configured such that, in immediate re-
sponse to selection of its assigned channel number, and
without further searching, video programming is only or
virtually entirely transmitted over the Internet . . . and
made available for viewing while the transmission is occur-
ring.” Id. The district court thus determined that Comcast
had not met its burden to show that the term was indefinite
by clear and convincing evidence.
At the summary judgment stage, the district court rec-
ognized that the parties still disputed the scope of the lim-
itation “wherein the server is distinct from at least one of
the one or more MSOs and one or more non-MSOs.” The
Case: 23-2098 Document: 67 Page: 6 Filed: 07/28/2025

-- 6 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 7
district court explained that “[WhereverTV] conceptual-
ize[d] such distinctness in terms of the tasks and processes
of the server and the MSO and non-MSO, while Comcast
conceptualize[d] the distinctness in terms of a business en-
tity’s ownership or control of the MSO and server.”
J.A. 11460. To resolve this dispute, the district court or-
dered a supplementary evidentiary hearing that included
the presentation of exhibits and expert testimony concern-
ing the construction of the limitation.
After considering intrinsic and extrinsic evidence, the
district court determined that “the meaning of ‘distinct
from,’ in context, is best read to pertain to functional dif-
ferences between the server and the MSO(s) and non-
MSO(s), rather than differences with respect to control.”
J.A. 11467–68. Based on this determination, the court con-
strued the term to mean “wherein the server is functionally
distinct from at least one of the one or more MSOs and one
or more non-MSOs.” J.A. 11468.
The case proceeded to a jury trial. At the close of
WhereverTV’s case-in-chief, Comcast moved for a directed
verdict of noninfringement on the “adding or deleting” lim-
itation (“wherein the application allows for the IPG to be
configured by a user with respect to adding or deleting
channels from any of the one or more MSOs or the one or
more non-MSOs”), as well as the “IPG application” limita-
tion (“an interactive program guide application installed on
the device that provides user-configurable interactive pro-
gram guide (IPG)”). The district court granted JMOL after
the close of evidence.
In its written order, the district court first addressed
the adding or deleting limitation and reaffirmed its plain
and ordinary meaning construction of this term. The dis-
trict court then determined that “[a]t no point during trial
did [WhereverTV] introduce evidence that an X1 user could
subscribe to a channel that was not already offered on the
accused X1’s IPG, thereby increasing the number of
Case: 23-2098 Document: 67 Page: 7 Filed: 07/28/2025

-- 7 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 8
channels offered on the IPG.” WhereverTV, Inc. v. Comcast
Cable Commc’ns, LLC, No. 2:18-cv-529-WFJ-NPM,
2023 WL 3819123, at *5 (M.D. Fla. June 5, 2023) (“JMOL
Order”). “Nor did [WhereverTV] introduce any evidence
that a user who unsubscribed from a particular app—such
as Netflix—could remove that app from the X1’s IPG en-
tirely such that . . . the app would not be displayed on the
IPG.” Id. The district court faulted WhereverTV for “en-
couraging the jury to accept that subscribing is adding and
unsubscribing is deleting,” which the court viewed as “a de-
parture from the plain and ordinary meaning of these
terms.” Id. The district court held that “[WhereverTV]
may not assert literal infringement based on the theory
that unsubscribing from an app . . . is conceptually similar
to deleting that app simply because both actions create im-
pediments for the user who wants to watch content offered
by the app.” Id. at *6. The district court further explained
that “the rigidity of the X1’s IPG display and the immuta-
bility of the channel listings provided by Comcast,” as tes-
tified to by both parties’ witnesses, “is in no way identical
to the customizable and restriction-free invention de-
scribed in the [’]431 Patent’s specification.” Id. at *7. The
district court also determined that, “[w]hile the [’]431 Pa-
tent allows users to increase the number of channels avail-
able to them—true to the plain and ordinary meaning of
‘adding’—the X1 only allows users to log in and out of chan-
nels that Comcast, and only Comcast, chose irrevocably to
emplace on the IPG.” Id.
The district court next addressed the IPG application
limitation, again noting that it was maintaining a plain
and ordinary meaning construction despite recognizing
that the “term’s plain and ordinary meaning is not readily
apparent.” Id. The district court then held that there was
“uncontested evidence” that the IPG application is not in-
stalled on the accused device because the XRE guide appli-
cation is on the server and not the STB. Id. at *8. The
district court also found that the XRE guide application
Case: 23-2098 Document: 67 Page: 8 Filed: 07/28/2025

-- 8 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 9
provides the “brains” for the IPG. Id. The district court
further determined that it was “undisputed that the cloud-
based XRE server, and not the XRE receiver, provides ‘the
data necessary for the . . . IPG.’” Id. at *9 (omission in orig-
inal) (emphasis removed) (citation omitted). As to Where-
verTV’s argument that the XRE receiver on the STB is the
IPG application, the district court determined that “the
[’]431 Patent’s specification does not support this conclu-
sion,” in view of Figures 4 and 8. Id. at *8. The district
court, in considering WhereverTV’s expert testimony that
the XRE receiver is a “thin client” capable of rendering and
signaling, found that this did not show that an IPG appli-
cation was installed on the STB. Id. at *8–9 (citation omit-
ted).
WhereverTV appeals and Comcast cross-appeals. We
have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
On appeal, WhereverTV primarily argues that the dis-
trict court’s JMOL rests on erroneous constructions of both
the “IPG application” and “adding or deleting” limitations.
For its part, Comcast presents two issues. First, Comcast
introduces an alternative ground to affirm the district
court’s JMOL, contending that the district court miscon-
strued the limitation “wherein the server is distinct from
at least one of the one or more MSOs and one or more non-
MSOs.” Finally, Comcast cross-appeals the district court’s
determination that the limitation “selectable for receiving
only or virtually entirely streaming video programming” is
not indefinite.
We review a district court’s grant of JMOL under the
standard of the regional circuit, Cyntec Co., Ltd. v. Chilisin
Elecs. Corp., 84 F.4th 979, 984 (Fed. Cir. 2023), here the
Eleventh Circuit, which reviews the grant of JMOL de
novo. Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272,
1278 (11th Cir. 2005). Substantive patent law issues are
reviewed under the law of our own circuit. Accenture Glob.
Case: 23-2098 Document: 67 Page: 9 Filed: 07/28/2025

-- 9 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 10
Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1340 (Fed. Cir. 2013). We review claim construction based
on intrinsic evidence de novo and review factual findings
about extrinsic evidence for clear error. SpeedTrack, Inc.
v. Amazon.com, 998 F.3d 1373, 1378 (Fed. Cir. 2021) (cit-
ing Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318,
331–32 (2015)). “Whether a claim complies with the defi-
niteness requirement . . . is a matter of claim construction.”
Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1311 (Fed. Cir.
2012).
We review in turn each issue raised by the parties.
I
WhereverTV contends that the district court erred in
holding, as a matter of law, that Comcast’s accused product
does not satisfy claim 1’s IPG application limitation—an
“interactive program guide application installed on the de-
vice that provides user-configurable interactive program
guide (IPG).” We agree.
The district court legally erred by not construing this
limitation using the claim construction framework set forth
in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005).
While the district court held that the plain and ordinary
meaning of the limitation applies, it also stated that the
plain and ordinary meaning is “not readily apparent” and
never clarified what it viewed as the plain and ordinary
meaning. JMOL Order, at *7. Moreover, the parties
clearly disputed the scope of this term. In O2 Micro Inter-
national Ltd. v. Beyond Innovation Technology Co., we held
that where the parties dispute the scope of a claim limita-
tion, the district court is to construe the claims at least to
the extent necessary to resolve the dispute. 521 F.3d 1351,
1360 (Fed. Cir. 2008); see also id. at 1361 (“A determina-
tion that a claim term . . . has [a] ‘plain and ordinary mean-
ing’ may be inadequate . . . when reliance on a term’s
‘ordinary’ meaning does not resolve the parties’ dispute,” in
which case “claim construction requires the court to
Case: 23-2098 Document: 67 Page: 10 Filed: 07/28/2025

-- 10 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 11
determine what claim scope is appropriate in the context of
the patents-in-suit.”). We have also held that a district
court should not construe claims in light of an accused
product and should instead analyze the claim language,
specification, and prosecution history, if relevant. See Wil-
son Sporting Goods Co. v. Hillerich & Bradsby Co.,
442 F.3d 1322, 1330 (Fed. Cir. 2006) (“[C]laims may not be
construed with reference to the accused device.” (citation
omitted)).
The district court’s JMOL cannot stand under the
proper construction of this limitation. We begin with the
claim language: “interactive program guide application in-
stalled on the device that provides user-configurable inter-
active program guide (IPG).” See Phillips, 415 F.3d
at 1314 (emphasizing importance of claim language). The
parties primarily dispute what it means for the IPG appli-
cation to “provide” a user-configurable IPG. Comcast as-
serts that the limitation’s use of the word “provides” means
that the claimed IPG application alone must provide the
functionality of the user-configurable IPG. See Cross-Ap-
pellant’s Br. 45–46, 56. But the term “provides” is com-
monly understood to have a broader meaning,1 and neither
party suggests that it is a technical term with a more lim-
ited meaning in the relevant field of art. Used alone, “pro-
vides” does not require that the IPG application do all the
work to make the IPG operable.
This understanding of “provides” is also consistent
with the entire claim limitation, which requires an “inter-
active program guide application installed on the device
that provides user-configurable interactive program guide
(IPG) listing at least one channel of video content available
from each of the one or more MSOs and each of the one or
1 For example, I can provide dinner for my kids
whether I am cooking a meal from scratch or ordering a
pizza for delivery.
Case: 23-2098 Document: 67 Page: 11 Filed: 07/28/2025

-- 11 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 12
more non-MSOs and descriptive program data from the
server.” Claim 1 itself contemplates that the server pro-
vides descriptive program data. The claim is also open-
ended, using the transitional phrase “comprising,” which
allows for the use of an additional IPG application in the
server. AFG Indus., Inc. v. Cardinal IG Co., Inc., 239 F.3d
1239, 1244–45 (Fed. Cir. 2001) (“When a claim uses an
‘open’ transition phrase, its scope may cover devices that
employ additional, unrecited elements. We have consist-
ently held that the word ‘comprising’ is an open transition
phrase.” (citation omitted)). In addition, as discussed in
more detail below, claim 1 recites that the IPG application
“allows for the IPG to be configured by a user with respect
to adding or deleting channels.” The broad language “al-
lows for” is consistent with the view that the IPG applica-
tion need not provide all the functionality for operation of
the IPG.
Turning to the specification, we conclude that the dis-
trict court improperly read additional requirements into
claim 1 based on the embodiments shown in Figures 4
and 8 of the ’431 patent, including that the IPG application
“‘procures digital rights via stored profile,’ ‘locates and au-
thenticates’ new content sources, and ‘downloads and syn-
chronizes content metadata from new content sources.’”
JMOL Order, at *8 (citation omitted). In particular, the
district court held that the accused device’s XRE receiver
is not an IPG application as required by the claims because
it does not “offer[] any of the functions or features illus-
trated in Figures 4 or 8.” Id. But none of these functions
or features are recited in claim 1, let alone recited as being
performed by the IPG application. Moreover, the specifica-
tion does not define an IPG application as limited to the
embodiments in Figures 4 and 8. Nor does it disclaim plac-
ing some of the functionality in Figures 4 and 8 in a server
and other functionality in a receiver. We are not inclined
to read the functionality from Figures 4 and 8 into the
claim in such a limiting manner absent lexicography or
Case: 23-2098 Document: 67 Page: 12 Filed: 07/28/2025

-- 12 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 13
express disclaimer. See GE Lighting Sols., LLC
v. AgiLight, Inc., 750 F.3d 1304, 1308–09 (Fed. Cir. 2014)
(“[C]laim terms must be construed in light of the specifica-
tion and prosecution history . . . . However, the specifica-
tion and prosecution history only compel departure from
the plain meaning in two instances: lexicography and dis-
avowal. . . . [Here,] while the specification[] only disclose[s]
a single embodiment of [the claimed term] in Figure 6, [it]
do[es] not disavow or disclaim the plain meaning of [the
term] or otherwise limit it to that embodiment.” (citation
omitted)).
Based on the claim language and the specification,2 we
agree with WhereverTV’s interpretation that the language
“interactive program guide application installed on the de-
vice that provides user-configurable interactive program
guide (IPG)” does not require that all the functionality of
the IPG must reside in the claimed IPG application. In
other words, it is sufficient that the IPG application pro-
vide an IPG in coordination with the server.
II
The parties also disputed the meaning of claim 1’s add-
ing or deleting channels limitation—i.e., “wherein the ap-
plication allows for the IPG to be configured by a user with
respect to adding or deleting channels.” WhereverTV as-
serts that channels can be added by subscribing and
2 On appeal, neither party relies on the prosecution
history of the ’431 patent for this term, and the only extrin-
sic evidence cited that is unconnected to a comparison be-
tween the claim language and the accused product is the
uncontested definition of “application” from Where-
verTV: a “program designed to assist in the performance
of a specific task, such as word processing, accounting, or
inventory management.” Appellant’s Br. 20 (citing
J.A. 15665).
Case: 23-2098 Document: 67 Page: 13 Filed: 07/28/2025

-- 13 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 14
deleted by unsubscribing, whereas Comcast asserts that
adding a channel is limited to making the channel appear
on the IPG user interface and deleting a channel is limited
to making the channel no longer appear on the IPG user
interface. The district court purported to use the plain and
ordinary meaning of the limitation,3 which in its view ex-
cluded the broader understanding that WhereverTV as-
serted. See JMOL Order, at *4–5. We adopt WhereverTV’s
broader construction.
Again, we begin with the claim language. Claim 1 re-
quires listing at least one MSO channel and at least one
non-MSO channel, wherein “each of the channels is se-
lectable” and “the application allows for the IPG to be con-
figured by a user with respect to adding or deleting
channels from any of the one or more MSOs or the one or
more non-MSOs.” The claim language does not say “adding
or deleting channels” to or from the IPG user interface.4 Ra-
ther the claim recites adding or deleting channels from the
MSOs or non-MSOs. In addition, the claim focuses on
3 The district court’s plain and ordinary meaning
analysis focused on dictionary definitions, but extrinsic ev-
idence cannot take precedence over the intrinsic record in
a court’s claim construction analysis. See Phillips,
415 F.3d at 1317 (“[W]hile extrinsic evidence can shed use-
ful light on the relevant art, we have explained that it is
less significant than the intrinsic record in determining the
legally operative meaning of claim language.” (quotation
marks and citation omitted)).
4 Comcast’s vague contention that WhereverTV
should be estopped from making this argument on appeal
is underdeveloped and unpersuasive. Accordingly, we do
not address this contention further. See, e.g., In re Killian,
45 F.4th 1373, 1386 (Fed. Cir. 2022) (explaining appellants
“forfeit[] any argument on appeal . . . by failing to present
anything more than a conclusory, skeletal argument”).
Case: 23-2098 Document: 67 Page: 14 Filed: 07/28/2025

-- 14 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 15
channels that are “selectable for receiving,” suggesting that
adding or deleting could relate to making channels se-
lectable or non-selectable. In light of the overall language
of the claim, we understand “adding or deleting channels”
as including adding a channel either by adding it to the
user interface or making it selectable and deleting a chan-
nel either by removing it from the user interface or by mak-
ing it non-selectable. Indeed, the claims do not specify
what is meant by adding or deleting, and the language is
broad enough to encompass either changing the ability to
select the channel or changing the user interface. Had the
patentee intended to limit the claims to modifying the dis-
play to include a new channel not previously displayed, it
could have included language in the claims to that effect.5
Turning next to the specification, it appears that the
specification treats subscribing to channels interchangea-
bly with adding channels in at least one embodiment of the
patented invention, despite Comcast’s arguments to the
contrary. In describing Figure 8, the specification states at
one point that the figure is “a flow chart of the method for
subscribing to new content using the global IPG of the in-
stant invention.” ’431 patent col. 8 ll. 58–59 (emphasis
5 Comcast’s arguments on claim differentiation are
unpersuasive. Comcast points to various dependent
claims, none of which use the term “subscribing,” but in-
stead claim a “digital rights management module that ob-
tains viewing rights for at least one of the channels”
(claim 3), an IPG that further “assists the user in manag-
ing rights to receive the streaming video programming”
(claim 15), or “automatically authenticat[es] the user to
one or more of the MSO or non-MSO sources” (claim 26).
Cross-Appellant’s Br. 25 (citation omitted). These terms
can all be fairly interpreted as adding further limitations
to an independent limitation, even if that limitation encom-
passes subscribing.
Case: 23-2098 Document: 67 Page: 15 Filed: 07/28/2025

-- 15 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 16
added). The specification goes on to also describe Figure 8
as “a flow chart that illustrates the logic undertaken by a
user to add a new content source at Step 800.” Id. at col. 15
ll. 13–14 (emphasis added). Figure 8 and the specifica-
tion’s description of it thus lend support to WhereverTV’s
broader reading of the adding or deleting channels limita-
tion. Moreover, Comcast does not point to anything in the
specification that explicitly limits the step of adding or de-
leting channels to exclude subscribing and unsubscribing.
Based on the claim language and the specification, we
agree with WhereverTV’s interpretation that “wherein the
application allows for the IPG to be configured by a user
with respect to adding or deleting channels” encompasses
making the channel selectable and non-selectable on the
IPG through subscribing and unsubscribing.
III
We have also considered Comcast’s assertion that the
district court erred in its construction of the limitation
“wherein the server is distinct from at least one of the one
or more MSOs and one or more non-MSOs” in claim 1. We
disagree and adopt the district court’s construction.
Comcast proposes that this limitation “reflects the in-
vention’s goal of freeing users from the ‘traditional cable-
television, content aggregation model where the MSO, ra-
ther than the user, is in control of what content is availa-
ble,’” Cross-Appellant’s Br. 58 (quoting ’431 patent col. 2
ll. 41–43), and should be construed to mean that the limi-
tation requires a server that is “distinct from” Comcast it-
self. Id. at 58–59. But this proposal improperly imports
unclaimed limitations into the term. Comcast seeks to im-
port the overarching goal of the patented invention into the
term “distinct from.” But if the patentee had wanted to
claim a server that was not controlled by a cable company,
the patentee could have used language to that effect. Com-
cast further seeks to import into this limitation that MSO
Case: 23-2098 Document: 67 Page: 16 Filed: 07/28/2025

-- 16 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 17
means a cable company as a business entity.6 Comcast
makes this argument despite (1) Comcast not explicitly dis-
puting on appeal the district court’s separate construction
of MSO that defines the term in a functional sense—i.e., as
“a cable, satellite, or Internet television content consolida-
tor that receives and then broadcasts channels of video con-
tent,” Claim Construction Order, at *3 (emphasis added);
and (2) the specification also referencing MSOs with re-
spect to functionality, see, e.g., ’431 patent col. 7 ll. 46–51;
see also J.A. 11464. We agree with the district court that,
in the context of the ’431 patent, “[t]o say that an MSO is a
cable company simply because an MSO is a part of a cable
company appears to be an invalid syllogism distorting the
plain meaning of the terms in question.” J.A. 11464. We
are thus unpersuaded that the district court erred in reach-
ing its underlying factual findings and ultimate construc-
tion of the “distinct from” term based on the language in
the claims, the prior constructions by the district court that
Comcast has not challenged, the specification, and the ex-
trinsic evidence in the form of dictionary definitions and
expert testimony.
6 As the district court acknowledged, importing into
the term that the claimed MSO is Comcast would be to im-
port not just Comcast’s ability to consolidate and broadcast
video content, but its entire business, including its “billing,
accounting, legal, HR, and IT departments” and any other
services it provides, like “internet and phone services.”
J.A. 11463. As WhereverTV crystalized on appeal, to say
that a server is distinct from a corporation like this would
create a claim term that falls outside the understanding of
a person of ordinary skill and would instead concern legal
questions over who controls said server. See Appellant’s
Reply Br. 31–32. We see no reason in either the intrinsic
or extrinsic record here to read in such a meaning to this
claim limitation.
Case: 23-2098 Document: 67 Page: 17 Filed: 07/28/2025

-- 17 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 18
IV
Finally, we reject Comcast’s indefiniteness argument
raised on cross-appeal. Comcast asserts that the phrase
“only or virtually entirely” in the limitation “wherein each
of the channels is selectable for receiving only or virtually
entirely streaming video programming” is indefinite. We
agree with the district court and WhereverTV that this lim-
itation “can be understood by those skilled in the art.”
Claim Construction Order, at *3.
Reading the limitation in the context of claim 1 as a
whole supports our holding. The limitation re-
cites: “wherein each of the channels is selectable for receiv-
ing only or virtually entirely streaming video programming
from its respective MSO or non-MSO source via the com-
munications link and the network.” Comcast itself pro-
posed that the limitation be interpreted as “wherein each
of the channels is configured such that, in immediate re-
sponse to selection of its assigned channel number, and
without further searching, video programming is only or
virtually entirely transmitted over the Internet . . . and
made available for viewing while the transmission is occur-
ring.” Id. Thus, the parties appear to agree that streaming
means transmission over the Internet. See Appellant’s Re-
ply Br. 45; Construction Order, at *3. And despite its ar-
guments on appeal, Comcast also appeared to agree at
claim construction that “only or virtually entirely” modifies
streaming of video programming, such that the claim re-
quires “only or virtually entirely” steaming video program-
ming. See Construction Order, at *3. In this context, we
agree with the district court that the limitation is not in-
definite. In the context of this claim, the term “virtually”—
similar to terms like substantially, about, and nearly—is
simply a term of degree that modifies entirely. It does not
render the claim indefinite. See One-E-Way, Inc. v. Int’l
Trade Comm’n, 859 F.3d 1059, 1067 (Fed. Cir. 2017)
(“While we note that ‘virtually’ is a term of degree, one that
slightly expands the scope of the term . . . ,[] the inclusion
Case: 23-2098 Document: 67 Page: 18 Filed: 07/28/2025

-- 18 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 19
of ‘virtually’ in these claims does not render them indefi-
nite.” (citation omitted)).
Comcast agrees that “virtually” is a term of degree, but
suggests that the patent fails to provide any “standard for
measuring that degree.” Cross-Appellant’s Br. 66–67 (cita-
tion omitted). But our case law does not foreclose the use
of terms of degree in claims, and as discussed, here the in-
clusion of “virtually” slightly expanded the scope of the
claim from receiving only streaming video programming
data to also include receiving effectively or almost entirely
streaming video programming data, the bounds of which a
skilled artisan would be informed of.
* * *
In light of the proper construction of claim 1’s IPG ap-
plication limitation and adding or deleting channels limi-
tation, as well as our decisions on Comcast’s alternative
arguments, we remand WhereverTV’s infringement allega-
tions to the district court for trial to determine infringe-
ment based on the correct construction of the claim terms.
See Rambus Inc. v. Infineon Techs. Ag, 318 F.3d 1081, 1095
(Fed. Cir. 2003) (“In sum, the district court erred in its con-
struction of each of the disputed terms. In light of the re-
vised claim construction, this court vacates the grant of
JMOL of noninfringement and remands for the district
court to reconsider infringement.”).
CONCLUSION
We have considered Comcast’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
vacate the district court’s JMOL of noninfringement and
Case: 23-2098 Document: 67 Page: 19 Filed: 07/28/2025

-- 19 of 20 --

WHEREVERTV, INC. v. COMCAST CABLE COMMUNICATIONS, LLC 20
remand for further proceedings consistent with this opin-
ion.7
VACATED AND REMANDED
COSTS
Costs to Appellant.
7 At oral argument, Comcast represented that there
was another validity defense apart from the indefiniteness
challenge resolved in this appeal that is still live and will
need to be resolved on remand based on the correct con-
struction of the claim terms. See Oral Arg. at 31:50–32:07,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-2098_02042025.mp3.
Case: 23-2098 Document: 67 Page: 20 Filed: 07/28/2025

-- 20 of 20 --