Infringement Case Against Comcast for ‘TV Everywhere' Multicasting Tech Dismissed

Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...

By Blake Brittain

May 15 — The owner of patents related to a multicasting service similar to Comcast Cable's “TV Everywhere” streaming technology failed to prove joint infringement by Comcast and related third parties, the U.S. District Court for the District of Delaware ruled May 13.

The court dismissed the claims, and said that the patent owner couldn't prove Comcast had “direction and control” over the third parties whose data gathering, combined with Comcast's activities, allegedly infringed the patent claims at issue.

‘TV Everywhere.'

Two-Way Media, Ltd., acquired U.S. Patent Nos. 6,434,622; 7,266,686; and 8,539,237—related to a system for transmitting, receiving, and monitoring audio and video over the Internet—by assignment in 2002.

Two-Way said that the system “allows live audio and video streams to be sent to multiple users and enables commercial record keeping and marketing functions.”

Two-Way sued Comcast Cable Communications LLC and its subsidiary, NBCUniversal Media LLC in August 2014 for infringing the three patents with Comcast's “TV Everywhere” service.

Two-Way asserted that Comcast infringed the patents by “allow[ing] subscribers to stream live TV content to digital platforms like computers, tablets, smartphones, and other devices via the Internet” with “TV Everywhere,” and that third parties including Adobe Systems Inc. jointly infringed by “gather[ing] usage statistics” on the service at Comcast's request.

Two-Way said Comcast and NBCUniversal “transmit[ted] to these third parties messages generated by software running on the user devices and ‘direct[ed] or control[led]' the third parties by requesting particular types of data on the delivery of the streaming content” as well as “offering their subscribers apps generating information that is ultimately transmitted to and used by the third parties to gather and process the statistical data.”

Two-Way said that these actions combined, resulted in joint infringement of all steps of the claims at issue.

Comcast filed a motion to dismiss for failure to state a claim, which the court granted.

Third Party Control Possible, Not Plausible

After determining that Two-Way's allegations were sufficient “to support the inference that various parties carr[ied] out all steps claimed in the patents-in-suit,” the court turned to the question of whether it was plausible that Comcast “exercise[d] control or direction over the entire process” including the actions of the third parties, as required to support a joint patent infringement claim.

“This court is required to take plaintiff's factual allegations as true, but plaintiff cannot plausibly allege the third parties were contractually obligated to perform all of the steps enumerated in plaintiff's patents because the terms of the contracts between defendants and the third parties are unknown to plaintiff,” Judge Mary Pat Thynge said.

The court also said that “providing specific statistics of interest,” as the third parties did for Comcast, “does not require that the third parties perform the enumerated steps of the patents-in-suit.”

“Thus, it is merely possible—rather than plausible—that defendants control and direct the third parties,” the court said, and granted Comcast's motion to dismiss.

Two-Way was represented by Joseph James Farnan of Farnan LLP, Wilmington, Del. Comcast was represented by Jack B. Blumenfeld of Morris Nichols Arsht & Tunnell LLP, Wilmington, Del.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Anandashankar Mazumdar at amazumdar@bna.com

Full text at http://www.bloomberglaw.com/public/document/TwoWay_Media_Ltd_v_Comcast_Cable_Communications_LLC_et_al_Docket_.