Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 1 of 32 PageID #: 777
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.,
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`CHARTER COMMUNICATIONS, INC.,
`et al.,
`
`
`
`
`
`Defendants.
`
`Touchstream Technologies, Inc.,
`
`
`
`
`
`
`
`
`
`
` Plaintiff,
`
`v.
`
`Comcast Cable Communications, LLC,
`d/b/a Xfinity, et al.,
`
` Defendants.
`
`
`Lead Case No. 2:23-cv-00059-JRG
`
`JURY TRIAL DEMANDED
`
`
`
`Member Case No. 23-cv-00062-JRG
`
`JURY TRIAL DEMANDED
`
`
`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Touchstream Technologies, Inc., hereby files this Second Amended Complaint for
`
`Patent Infringement against Comcast Cable Communications, LLC, d/b/a Xfinity, Comcast Corp.,
`
`Comcast Cable Communications Management, LLC, and Comcast of Houston, LLC (collectively,
`
`“Comcast”) and alleges, upon information and belief, as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff Touchstream Technologies, Inc., d/b/a Shodogg (“Touchstream” or “Plaintiff”) is
`
`a Delaware corporation with its principal place of business in South Dakota.
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`2.
`
`Defendant Comcast Cable Communications, LLC is a limited liability company organized
`
`and existing under the laws of the State of Delaware, having its principal place of business at One
`
`Comcast Center, 1701 John F. Kennedy Boulevard., Philadelphia, Pennsylvania 19103. Comcast
`
`Cable Communications, LLC may be served through its registered agent Comcast Capital
`
`Corporation, 1201 N. Market Street, Suite 1000, Wilmington, Delaware 19801.
`
`3.
`
`Defendant Comcast Corporation is a Pennsylvania corporation with its principal place of
`
`business at One Comcast Center, 1701 John F. Kennedy Boulevard., Philadelphia, Pennsylvania
`
`19103. It is registered to do business in the state of Texas and may be served through its registered
`
`agent at CT Corporation System, 1999 Bryan Street., Suite 900, Dallas, Texas 75201.
`
`4.
`
`Defendant Comcast Cable Communications Management, LLC is a limited liability
`
`company organized and existing under the laws of the State of Delaware, having its principal place
`
`of business at One Comcast Center, 1701 John F. Kennedy Boulevard., Philadelphia, Pennsylvania
`
`19103. Comcast Cable Communications Management, LLC may be served through its registered
`
`agent CT Corporation System, at 1999 Bryan Street, Suite 900, Dallas, Texas 75201. On
`
`information and belief, Comcast Cable Communications Management, LLC is registered to do
`
`business in the State of Texas and has been since at least November 10, 2011.
`
`5.
`
`Defendant Comcast of Houston, LLC is a limited liability company organized and existing
`
`under the laws of the State of Delaware, having its principal place of business at One Comcast
`
`Center, 1701 John F. Kennedy Boulevard., Philadelphia, Pennsylvania, 19103. Comcast of
`
`Houston may be served through its registered agent CT Corporation System, at 1999 Bryan Street,
`
`Suite 900, Dallas, Texas 75201.
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 3 of 32 PageID #: 779
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`NATURE OF THE ACTION
`
`6.
`
`This is a civil action against Comcast for patent infringement arising under the patent
`
`statutes of the United States, 35 U.S.C. § 271 et seq. for the infringement of United States Patents
`
`No. 8,356,251 (the “’251 Patent”), No. 11,048,751 (the “’751 Patent”), and No. 11,086,934 (the
`
`“’934 Patent”) (alternatively, “the Touchstream Patents”). A true and correct copy of the ’251,
`
`‘751, and ‘934 patents are attached as Exhibits 1, 2, and 3 to this Complaint.
`
`JURISDICTION AND VENUE
`
`7.
`
`This action arises under the patent laws of the United States, Title 35 of the United States
`
`Code. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and
`
`1338(a).
`
`8.
`
`This Court has personal jurisdiction over Comcast in this action because Comcast has
`
`committed acts within the Eastern District of Texas giving rise to this action and has established
`
`minimum contacts with this forum such that the exercise of jurisdiction over Comcast would not
`
`offend traditional notions of fair play and substantial justice. Comcast has engaged in continuous,
`
`systematic, and substantial activities within this State, including substantial marketing and sales of
`
`products—including the Xfinity products1 that are used by Comcast in connection with performing
`
`the accused Xfinity functionalities2—within this State. Furthermore, Comcast—directly and/or
`
`through subsidiaries or intermediaries—has committed and continues to commit acts of
`
`infringement in this District by, among other things, selling, offering to sell, and using the Xfinity
`
`service.
`
`
`1 The term “the Xfinity products” is defined at ¶¶ 54 et. seq., infra.
`2 The term “accused Xfinity functionalities” is defined at ¶¶ 34, et. seq., infra.
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`9.
`
`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and (c) and/or 1400(b).
`
`As discussed above, Comcast currently has a regular and established place of business in this
`
`District, and has committed and continues to commit acts of patent infringement in this District.
`
`10.
`
`Comcast maintains a permanent physical presence within the Eastern District of Texas,
`
`conducting business from numerous locations, including at least 135 Houston St, Lewisville Texas,
`
`75057; 1300 Coit Road, Plano Texas 75075; 3033 W. President George Bush Hwy, Plano Texas
`
`7505; 900 Venture Drive, Allen Texas 75013; and 8537 Labelle Road, Beaumont Texas, 77705.
`
`On information and belief, Comcast operates physical operations in at least the counties of Denton,
`
`Collin, Liberty, Anderson, Liberty, and Harrison.
`
`11.
`
`Comcast also maintains a Texas office where Xfinity products are developed, located at
`
`6200 Bridge Point Parkway, #500, Austin, Texas 78730.
`
`12.
`
`Public reporting indicates that Comcast has maintained an office in Austin since 2016.3
`
`13.
`
`On information and belief, managers and engineers responsible for the development and
`
`execution of Comcast’s development and strategy of the Xfinity products, currently reside in or
`
`around Austin, Texas, and are currently employed by Comcast.
`
`14.
`
`Comcast employed at least 100 persons in Austin as of September 2016.4 As of January
`
`25, 2023, Comcast had job postings for 62 positions in Texas, with engineering roles specifically
`
`related to the infringing technologies in Austin.5
`
`
`3 See, e.g., Calnan, Christopher, Another Media Giant to Open R&D Office in Austin, Austin
`Bus. J., Sep. 6, 2016
`4 Austin Relocation Guide, https://austinrelocationguide.com/comcast-corporation-plans-to-hire-
`for-new-austin-rd-office/
`5 Search conducted via https://jobs.comcast.com/jobs/description/tpx-jd-
`template?external_or_internal=External&job_id=R351687. See, e.g., Roku engineering position
`https://jobs.comcast.com/jobs/description/tpx-jd-
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`15.
`
`Comcast directly and/or indirectly tests, distributes, markets, offers to sell, sells, and/or
`
`utilizes the Xfinity products that Comcast uses to perform the accused Xfinity functionalities in
`
`the Eastern District of Texas, and otherwise purposefully directs infringing activities to this
`
`District in connection with its Xfinity products.
`
`TOUCHSTREAM’S PATENTS
`
`16.
`
`In 2010, David Strober, the inventor of the Touchstream Patents and the original founder
`
`of Touchstream, was working at Westchester Community College as a Program Manager and e-
`
`learning instructional designer. At this job Mr. Strober facilitated the development of online
`
`college courses, developing software as needed to support those efforts.
`
`17.
`
`At least as early as mid-2010, Mr. Strober perceived the need to be able to take videos that
`
`could be viewed on a smaller device, like a smartphone, and “move” them to a larger screen, like
`
`a computer monitor or television. In working to bring his idea to fruition, Mr. Strober expanded
`
`his work by using a device like a smartphone to cause a video to play on a second screen, even if
`
`that video resided elsewhere (like the public internet). Near the end of 2010, Mr. Strober had
`
`developed a working prototype that demonstrated his groundbreaking concept. Recognizing that
`
`that his invention could revolutionize how people located, viewed, and shared media, Mr. Strober
`
`filed his first patent application in April 2011.
`
`18.
`
`The Touchstream Patents are not directed to an abstract idea, but are limited to a specific,
`
`concrete messaging architecture. The claims require various components to send or receive signals
`
`(or messages) to control the playback of videos from various media players over a network, with
`
`precise requirements varying by claim. They do not cover all forms of remote control of content
`
`
`template?external_or_internal=External&job_id=R349546, or X1 Media Platform engineering
`position https://comcast.jibeapply.com/main/jobs?location=texas&page=1&limit=100
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`over a network. Specific steps must be performed in their specified order. Steps of the ‘251 patent
`
`claims include, inter alia:
`
` Assigning a synchronization code to a display device by a server system;
`
` Receiving a message in the server system including the synchronization code;
`
` Storing a record in the server system based on the synchronization code;
`
` Receiving signals specifying a video file and identifying a particular media player;
`
`
`
`Including the synchronization code and a universal playback control command in the
`messages;
`
` Converting the universal playback control command to corresponding programming code;
`and
`
`
`
` Storing in a database information that specifies the video file to be acted upon, identifies
`the media player, and includes the corresponding programming code.
`The ‘751 and ‘934 patent claims typically include similar, and some additional, steps. Further, Mr.
`
`Strober’s improvements in this area do not reflect routine nor conventional steps. The arrangement
`
`of components and steps themselves is inventive, enabling, among other things, using different
`
`media players, associating different devices with a synchronization code, and coordinating
`
`between a personal computing device and display device loading a plurality of media players,
`
`video files, and control commands.
`
`19.
`
`The Touchstream Patents, which are entitled “Play Control of Content on a Display
`
`Device,” each claim priority to U.S. Provisional Patent Application No. 61/477,998 (filed on April
`
`21, 2011).
`
`20.
`
`On October 10, 2012, the U.S. Patent and Trademark Office issued a notice of allowance
`
`for the application that became the ’251 patent. On January 15, 2013, the U.S. Patent and
`
`Trademark Office duly and legally issued the ’251 Patent to inventor David Strober. On June 29,
`
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`2021 the U.S. Patent and Trademark Office duly and legally issued the ‘751 Patent to inventor
`
`David Strober. On August 10, 2021, the U.S. Patent and Trademark Office duly and legally issued
`
`the ‘934 Patent to inventor David Strober.
`
`21.
`
`Touchstream is the owner, by assignment, of all rights, title, and interest in the ’251, ’751,
`
`and ’934 Patents.
`
`BACKGROUND OF THE DISPUTE
`
`TOUCHSTREAM REVOLUTIONIZES VIDEO STREAMING
`
`22.
`
`In 2011, inventor David Strober officially incorporated Touchstream to share his
`
`inventions with the world.
`
`23.
`
`24.
`
`In the following years, Touchstream raised millions of dollars in investments.
`
`Since 2011, Touchstream, d/b/a “Shodogg,” developed software that enables content to be
`
`wirelessly cast (e.g., accessed, displayed, and controlled) from a mobile device to a second display
`
`screen (e.g., TV, computer, tablet, etc.). Touchstream has been a leader in developing casting
`
`technology and has received numerous awards and recognition.
`
`25.
`
`Unfortunately, the efforts of Touchstream and Touchstream’s partners to appropriately
`
`monetize Mr. David Strober’s inventions were significantly hindered by infringement of the
`
`Touchstream Patent, including by Comcast. The timing and scope of Comcast’s infringement is
`
`discussed in more detail below.
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`COMCAST MEETS EXTENSIVELY WITH TOUCHSTREAM IN 2011-2017
`TO LEARN ABOUT THE PATENTED TOUCHSTREAM TECHNOLOGY
`
`26.
`
`Since at least December 14, 2011, Touchstream has made publicly clear that its
`
`revolutionary product offerings were “patent-pending.”6
`
`27.
`
`Just days after the first Touchstream Patent issued on January 15, 2013, Touchstream
`
`issued a press release announcing this patent award.7
`
`28.
`
`It was pattern and practice for Touchstream to inform potential business partners of its
`
`patents and patent applications, as well as the fact that its technology was protected by those
`
`patents and patent applications.
`
`29.
`
`At least as early as August 2011, Touchstream and Comcast began discussing a potential
`
`partnership concerning the technology invented by Touchstream.
`
`
`6 See e.g., Sean Ludwig, Shodogg will let you pause and restart video from any device
`(exclusive), VentureBeat (Dec. 14, 2011 7:00 AM), https://venturebeat.com/2011/12/14/shodogg-
`video-sharing-phones-tvs-exclusive/; Shodogg, Shodogg Launches at CES and Transforms
`Streaming Video Delivery by Fueling Industry Expansion with Content Providers, Cision PR
`Newswire (Jan. 10, 2012, 9:43 ET), https://www.prnewswire.com/news-releases/shodogg-
`launches-at-ces-and-transforms-streaming-video-delivery-by-fueling-industry-expansion-with-
`see
`also
`content-providers-137010098.html;
`snapshot
`(archived
`https://web.archive.org/web/20111003131546/http://shodogg.com/
`of
`Shodogg website from October 3, 2011) (“Shodogg is a patent-pending technology that allows
`viewers to access online streaming content from any smartphone and display it to any larger
`connected screen, such as a laptop, tablet, or TV.”).
`7 Shodogg, Shodogg announces the release of ScreenDirect a business-to-business solution
`enabling companies to seamlessly direct digital content across screens, Cision PR Newswire (Jan.
`17, 2013 9:15 ET) https://www.prnewswire.com/news-releases/shodogg-announces-the-release-
`of-screendirect-a-business-to-business-solution-enabling-companies-to-seamlessly-direct-digital-
`content-across-screens-187284641.html; See also, e.g., Meet Shodogg Who Won this Year’s
`Techweek
`NYC
`Launch
`Competition,
`AlleyWatch
`(Dec.
`2014),
`https://www.alleywatch.com/2014/12/meet-shodogg-who-won-this-years-techweek-nyc-launch-
`competition/.
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`30.
`
`On August 19, 2011, multiple Touchstream employees gave a presentation to an executive
`
`at Genacast Ventures—Comcast’s seed fund8—and detailed the architecture of Touchstream’s
`
`technology as well as Touchstream’s business/licensing models. At this meeting, Touchstream
`
`referred to its technology as “Patent-Pending” and disclosed Provisional Patent Application No.
`
`61/477,998, which was filed on April 21, 2011 (“Provisional Patent Application”), and from which
`
`all three Touchstream Patents originate. Thus, Comcast knew of the Provisional Patent
`
`Application—which discloses the subject matter of the three asserted Touchstream Patents, and
`
`from which they claim priority—no later than August 19, 2011. Comcast was also on notice that
`
`the technology being presented by Touchstream was covered by a patent application, and that any
`
`copying or other use of that technology without Touchstream’s permission would risk infringing
`
`on the later issuing patents.
`
`31.
`
`On December 14, 2011, a member of the Applied Research team at Comcast Labs, the
`
`advanced technology arm of Comcast,9 reached out to Touchstream and expressed interest in
`
`Touchstream’s technology, remarking that he would be meeting with Touchstream at the
`
`upcoming Consumer Electronics Show (“CES”) in Las Vegas. This employee further informed
`
`Touchstream that he had already signed up for an alpha trial of Touchstream’s technology, and
`
`later that day he requested that Touchstream “expedite alpha access” for a few Comcast employees.
`
`Touchstream agreed to do so.
`
`
`8 David Horowitz, Helping New York Entrepreneurs Build Their Businesses, Comcast
`Entrepreneurship (Mar. 3, 2011), https://corporate.comcast.com/comcast-voices/helping-new-
`york-entrepreneurs-build-their-businesses.
`9 Comcast Labs: Building Tomorrow’s Technologies, Comcast,
`https://corporate.comcast.com/news-information/news-feed/reimagining-the-future-of-
`technology-in-the-home (last visited Mar. 26, 2024).
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`32.
`
`On December 21, 2011, an executive assistant at Comcast informed Touchstream that Tony
`
`Werner (at the time, Chief Technology Officer of Comcast Cable Communications LLC
`
`(“Comcast Cable”)), Sam Schwartz (at the time, President of Converged Products at
`
`NBCUniversal Media, LLC (“NBC”)), and Neil Smit (at the time, Chief Executive Officer of
`
`Comcast Cable) wanted to meet with Touchstream at CES. Following their meeting at CES, Tony
`
`Werner helped coordinate meetings between Touchstream and other Comcast personnel such as
`
`the then-Chief Technology Officer of Comcast Cable and then Chief Technology Officer of
`
`Comcast Interactive Media (a division of Comcast).
`
`33.
`
`On April 23, 2013, shortly after the asserted ’251 Patent issued, Touchstream again met
`
`with the same Genacast executive to discuss how Touchstream had evolved its business since their
`
`last meeting in 2011. It would have been Touchstream’s practice to disclose the issuance of the
`
`’251 Patent at that meeting and at its other meetings going forward.
`
`34.
`
`Touchstream maintained consistent communications with Comcast from 2011 to 2016 to
`
`discuss licensing opportunities and to learn more about Touchstream’s technology. During the
`
`same period of time, Touchstream also regularly met with individuals from NBC, in which
`
`Comcast Corporation acquired a majority interest in January 2011 and later acquired full
`
`ownership. For example, in 2012, Touchstream informed Tony Werner that Touchstream had met
`
`with executives at NBC.
`
`35.
`
`Throughout this time, Comcast and NBC appear to have freely shared information with
`
`each other gained from their meetings with Touchstream and worked together to coordinate
`
`meetings between Touchstream and personnel from both Comcast and NBC.
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`36.
`
`For example, Neil Smit, who scheduled an appointment to meet with Touchstream at CES,
`
`served as a director at Comcast’s parent corporation from 2010-2016, and had responsibilities for
`
`both Comcast Cable and NBC, including over reporting matters of patent infringement, at the time
`
`he scheduled a meeting with Touchstream.10
`
`37. Moreover, at CES Touchstream simultaneously met with at least Tony Werner of Comcast
`
`Cable and Sam Schwartz of NBC. On April 5, 2012, the assistant to an NBC executive reached
`
`out to Touchstream to set up a meeting with Touchstream and various Comcast and NBC personnel
`
`such as then Head of Corporate Strategy and Financial Planning at Comcast, then President
`
`Converged Products at Comcast NBCUniversal, and then VP Corporate Strategy at NBC. On
`
`April 18, 2012, that NBC executive informed Touchstream that he was speaking to “the Comcast
`
`folks” with regard to scheduling a meeting between Touchstream and NBC. Prior to starting at
`
`NBC in June 2011, that NBC executive had served as the senior Vice President, Finance at
`
`Comcast for nearly 5 years. On March 3, 2016, another NBC executive offered to introduce
`
`Touchstream to Comcast Ventures.
`
`38.
`
`In addition to the meetings and communications described above, on December 9, 2016,
`
`Touchstream sent a slide deck expressly disclosing asserted U.S. Patent No. 8,356,251 to Jeffrey
`
`Pinard (at the time VP, Data Technology & Engineering at NBC). Thus, Comcast Corporation’s
`
`subsidiary, NBC, had knowledge of the ’251 Patent, the same patent asserted in this case, at least
`
`as early as December 9, 2016.
`
`
`10 Comcast 10-K 2010 at pp. 83, 97 (available at https://www.cmcsa.com/static-files/0b94292c-
`23e7-46c1-b226-daf51df09c00 ); Comcast 10-K 2016 at pp. 109, 123 (available at
`https://www.cmcsa.com/static-files/cd9c1f30-3ea9-4075-a79e-2be0bc7ea701 ).
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`39.
`
`As discussed above, NBC and Comcast freely shared information regarding their meetings
`
`with Touchstream and often directly coordinated such meetings. Thus, Comcast also had either
`
`actual or imputed knowledge of the ’251 Patent by patent number at least by on or around
`
`December 9, 2016. Indeed, the greater Comcast enterprise regularly pools resources and
`
`knowledge regarding intellectual property. For example, Comcast and NBC’s parent corporation
`
`reports on IP issues affecting the greater Comcast enterprise. See supra, Comcast 10-K 2010 at pp.
`
`22, 35-36, 69, 83; Comcast 10-K 2016 at pp. 21, 31, 96, 109; see also, supra, Comcast 10-K 2010
`
`at Table of Contents (“Throughout this Annual Report on Form 10-K, we refer to Comcast
`
`Corporation as “Comcast;” Comcast and its consolidated subsidiaries, including NBCUniversal
`
`following the closing of or transaction on January 28, 2011, as ‘we,’ ‘us,’ and ‘our;’ and Comcast
`
`Holdings Corporation as ‘Comcast Holdings.’”).
`
`40.
`
`As such, Comcast knew of the ’251 Patent by patent number no later than December 9,
`
`2016.
`
`41.
`
`Despite knowing of the issued ’251 Patent, Comcast intentionally decided to disregard
`
`Touchstream’s intellectual property rights and willfully infringe the ’251 patent.
`
`42.
`
`At no point from 2011 to 2017 did Comcast reach out to Touchstream about potentially
`
`acquiring a license to Touchstream’s pending or awarded patents, and to this day Comcast has not
`
`requested or received a license to any of the Touchstream Patents.
`
`43.
`
`Accordingly, upon information and belief, Comcast knew of Touchstream’s patent-
`
`pending technology since August 19, 2011, knew of the ’251 Patent no later than December 9,
`
`2016, knew that its products were infringing from various meetings and communications
`
`discussing licensing opportunities, and continues to sell, offer for sale, and/or use the Accused
`
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`Functionalities and Accused Products such that Comcast is willfully infringing the Touchstream
`
`Patents.
`
`44.
`
`The facts discussed above support an inference of conscious copying by Comcast of
`
`Touchstream’s technology, which Comcast knew or should have known was patent-pending and
`
`then patented such that copying would amount to patent infringement. Comcast’s repeated high-
`
`profile meetings to discuss Touchstream’s technology evidence both Comcast’s need for the
`
`patented functionality as a valuable service to its customer base and Comcast’s inability to develop
`
`that technology internally. The similarity of Comcast’s after-released technology to that presented
`
`by Touchstream evidences copying with the knowledge that this would lead to infringement.
`
`45.
`
`Further, Comcast has not ceased its infringing behavior since the Original Complaint was
`
`filed on February 17, 2023. To date, Comcast is still selling, offering for sale, and/or using the
`
`Accused Functionalities and Accused Products such that Comcast is willfully infringing the
`
`Touchstream Patents.
`
`46.
`
`Upon information and belief, Comcast also either monitored Touchstream’s patent
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`portfolio and 2017 patent litigation against Vizbee, in which Touchstream asserted the ’251 Patent,
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`or departed from its usual custom of doing so in an attempt to remain willfully blind to
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`Touchstream’s technology and Comcast’s infringement thereof.
`
`47.
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`Comcast has a pattern and practice of monitoring patent litigations over technologies
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`relating to Comcast’s operations. For example, Comcast retained the law firm Dreier, LLP to
`
`monitor the patent litigation over VoIP telephony between Sprint Communications Company, LLP
`
`and Vonage while expressing the desire to “remain anonymous” in monitoring the trial. See Sprint
`
`Commun. Co., L.P. v. Comcast Cable Commun., LLC, No. 11-2684-JWL, 2015 WL 11121851, at
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 14 of 32 PageID #: 790
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`*1 (D. Kan. Aug. 4, 2015). Further, Comcast analyzed the probability that Sprint would succeed
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`in a patent infringement suit based on its monitoring of the Vonage trial, estimated Sprint’s
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`likelihood of success at 75%, and continued to infringe Sprint’s patents. See Sprint Commun. Co.
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`L.P. v. Comcast Cable Commun. LLC, No. 11-2684-JWL, 2017 WL 3730493, at *1 (D. Kan. Aug.
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`30, 2017). Finally, rather than cease its infringement of Sprint’s patents, Comcast instead sought
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`to acquire patents to “Prep for . . . Sprint . . . . ” Id.
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`48.
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`Further evidencing at least willful blindness, at the time Touchstream met with Tony
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`Werner, Mr. Werner was deeply ingrained in Comcast’s patent policy for preparing for specific
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`claims of patent infringement. For example, in 2007 Comcast Cable’s Vice President of Strategic
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`Intellectual Property gave a presentation to Tony Werner and Comcast Corporation General
`
`Counsel Art Block on the “Intellectual Property Business at Comcast.” Comcast Cable Commc’ns,
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`LLC, et al, v. Sprint Commcn’s Co. L.P., et al Day 3 am (Feb. 1, 2017) Trial Tr. at 97:11-16,
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`100:18-20.
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`49.
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`This presentation to Mr. Werner included suggestions that Comcast not be “passive with
`
`respect to where licensing discussion may take place,” but “should at least be thinking about do
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`we have a strong portfolio to use as a counter assertion should we get into patent discussions with
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`any of the types of companies listed,” and specifically referenced “Preparation” for “Verizon,
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`Sprint, AT&T.” Id. at 104-105. This strategy was implemented at Comcast. Id. at 101.
`
`50.
`
`For an executive like Mr. Werner, who played such a close role in Comcast’s preparing for
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`potential patent accusations by specific companies, to have multiple meetings with Touchstream
`
`where Touchstream at least described its technology as patent-pending and then patented, and then
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`as Chief Technical Officer to oversee Comcast’s decision to not partner with Touchstream but
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 15 of 32 PageID #: 791
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`instead to develop a similar, infringing solution without permission from Touchstream, is at the
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`very least willful blindness to Touchstream’s patent rights and the substantial possibility that
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`Comcast was infringing them.
`
`51.
`
`All of these facts taken together constitute willful infringement by Comcast, with actual or
`
`imputed knowledge of Touchstream’s patents, or at the very least willful blindness to the
`
`knowledge of those patents.
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`COMCAST UNVEILS ITS INFRINGING XFINITY X1 SERVICES
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`52.
`
`Comcast unveiled
`
`its X1 product―which performs
`
`the
`
`infringing Xfinity
`
`functionalities―in May 2012.11
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`53.
`
`As of December 31, 2021, Comcast announced it had 17.5 million X1 customers.12
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`THE ACCUSED XFINITY FUNCTIONALITIES
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`54.
`
`The accused Xfinity X1 functionalities comprise the methods performed through operation
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`of at least the standalone X1 Set Top Box (“STB”) devices as well as Xfinity mobile applications
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`used in conjunction with X1 STBs. The X1 products did provide in the past, and continue to
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`provide, functionality and structure that facilitates the controlling of content, such as audio and/or
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`video content, on a content presentation device that loads any one of a plurality of different media
`
`players (Pandora or Netflix, e.g.), described in further detail below.
`
`
`
`
`11 Richard Lawler, Comcast Officially Launches Next-gen X1 DVR Platform and iPhone Remote
`App, Engadget (May 21, 2012) https://www.engadget.com/2012-05-21-comcast-x1-dvr-iphone-
`app-launch.html
`12 Comcast Corporation, Form 10-K, at 3 (Dec. 2021)
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 16 of 32 PageID #: 792
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`55.
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`Upon initial operation, the X1 STB is connected to a device having a screen (e.g., a
`
`X1 STB13
`
`
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`television). The user then activates their STB with their Xfinity account information, such as
`
`account number and phone number.14 On information and belief, the X1 STB communicates with
`
`Comcast servers to register a Device Identifier that is associated with the user account.
`
`56.
`
`Upon initialization, the STB presents the user with various applications and media options,
`
`including live TV, DVR, and web-based media streaming applications, as pictured below. Each
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`option uses a different application on the STB for media playback, but the user is presented a single
`
`unified menu interface. The STB presents the user with a main menu interface including options
`
`of, among other things, “Saved,” “On Demand,” “Apps,” and “Guide.” An example of this is
`
`shown below.
`
`
`
`
`13 https://www.xfinity.com/learn/digital-cable-
`tv/x1?cjevent=9c7a99489cf211ed824722ef0a82b82c&cmp=aff__100357191&cjdata=MXxOfD
`B8WXww.
`14 Xfinity TV Set-Top Box Install Instructions,
`https://secure.xfinity.com/anon.comcastonline2/support/help/faqs/HOW8585/X1_QSG_SIK_101
`4_HOW8585.pdf
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 17 of 32 PageID #: 793
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`“Learn about Xfinity X1” YouTube, Feb. 7, 2020, at 1:17
`https://www.youtube.com/watch?v=kJgJOc8etQ8
`
`Selecting “Saved” from the main menu shows a list of their recording DVR programs,
`
`
`
`57.
`
`alongside purchased movies and TV shows associated with their user account. An example of this
`
`is shown below.
`
`“Learn about Xfinity X1” YouTube, Feb. 7, 2020 at 1:19
`https://www.youtube.com/watch?v=kJgJOc8etQ8
`
`
`
`58.
`
`Selecting “On Demand” from the main menu shows a menu of video content available for
`
`viewing, including TV shows and movies. An example of this is shown below.
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`Case 2:23-cv-00059-JRG Document 30 Filed 03/28/24 Page 18 of 32 PageID #: 794
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`“Learn about Xfinity X1” YouTube, Feb. 7, 2020 at 1:26
`https://www.youtube.com/watch?v=kJgJOc8etQ8
`
`
`
`59.
`
`Selecting “Apps” from the main menu shows a menu of internet media applications that
`
`can be used to stream digital media. For example, users may launch Pandora, Netflix, or Prime
`
`Video applications from this menu. An example of this is shown below. On information and belief,
`
`Xfinity also facilitate