The principle of party presentation is having a moment at the Supreme Court—and a newly filed amicus brief in Comcast Cable Communications, LLC v. WhereverTV, Inc. could help push the Justices to say more about it.
Case: Comcast Cable Communications, LLC v. WhereverTV, Inc., No. 25-820
Lower Court: Federal Circuit
Docketed: January 12, 2026
Status: Pending — Distributed for Conference of February 20, 2026
Question Presented: Whether a court of appeals may override the principle of party presentation by deciding sua sponte a non-jurisdictional issue that a party deliberately waived.
This dispute began as a patent infringement suit. WhereverTV sued Comcast over U.S. Patent No. 8,656,431, which covers an interactive program guide system for digital entertainment services. At trial in the Middle District of Florida, WhereverTV expressly chose not to seek construction of two claim limitations in its asserted patent—a strategic decision that shaped the jury’s consideration of infringement. The jury found for Comcast, and the district court granted judgment as a matter of law.
On appeal, the Federal Circuit faulted the district court for not construing those very claim terms—the ones WhereverTV had deliberately left unconstrued. Invoking its O2 Micro doctrine, the court held the district court “legally erred” and proceeded to conduct its own claim construction without notice to or input from the parties. Comcast petitioned for certiorari in January 2026, identifying a deep circuit split on whether appellate courts possess discretion to reach waived non-jurisdictional issues. The petition was filed by Robert Brian Niles-Weed of Weil, Gotshal & Manges. WhereverTV—represented by Brett Rosenthal of Reese Marketos—waived its right to respond.
On February 11, Professor Joan E. Steinman—a leading civil procedure scholar and professor emerita at IIT Chicago-Kent College of Law—filed an amicus brief in support of Comcast. The brief was filed by Jordan Bock of Goodwin Procter. Professor Steinman brings singular academic authority to this question; her scholarship on when appellate courts may properly resolve issues in the first instance is among the most cited in the field. The brief argues that the Federal Circuit’s discretionary approach deprives the losing party of due process by denying notice and an opportunity to respond—fundamentals of the adversarial system. It further contends that allowing courts to reach deliberately waived issues undermines the strategic choices parties make in shaping their own litigation and introduces unpredictability into appellate practice across the circuits.
The case arrives at a time when the Court is paying increasing attention to party presentation. In November 2025, the Court issued a unanimous per curiam in Clark v. Sweeney (No. 25-52), reversing the Fourth Circuit for departing “dramatically” from the principle by granting habeas relief on a claim the petitioner never raised. That decision, along with the 2020 ruling in United States v. Sineneng-Smith, signaled the Court’s vigilance about sua sponte appellate decisionmaking—but left open significant questions about the principle’s scope and source. Comcast gives the Court an opportunity to address the issue outside habeas, in the context of a civil patent case with a cleanly presented circuit split.
With the Steinman amicus brief now on file and no opposition from WhereverTV, the petition is distributed for the February 20, 2026 conference.