On November 30, 2022, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision by the U.S. District Court for the Western District of Washington striking portions of a plaintiff’s expert report and granting summary judgment of non-infringement to defendant.
Treehouse Avatar LLC v. Valve Corp., No. 21-1171 (Fed. Cir. Nov. 30, 2022). The CAFC found that the district court did not abuse its discretion in its decision to strike portions of the report, nor did it err in its finding that plaintiff failed to rebut defendant’s evidence of non-infringement.
Plaintiff sued defendant over a patent directed to a method of collecting data from an information network in response to the choices of a plurality of users navigating character-enabled (CE) network sites. Relevant to the appeal, the parties agreed in district court to a particular construction for the claim term “character-enabled (CE) network site,” specifically: “a network location, other than a user device, operating under control of a site program to present a character, object, or scene to a user interface.” This agreed-upon construction was based on the construction adopted by the Patent Trial and Appeal Board during an
inter partes review (IPR) trial filed against Treehouse’s asserted patent by Valve.
However, despite the agreed-upon construction from the IPR, plaintiff’s expert submitted a report in district court that applied the plain and ordinary meaning to “character-enabled (CE) network site.” The expert later submitted a “supplemental” report, stating:
I recognize that the term “character-enabled network site” was agreed to be construed as “a network location, other than a user device, operating under control of a site program to present a character, object, or scene to a user interface.” This is the ordinary meaning, and thus my opinions applied this meaning and are unchanged.
Defendant moved to strike portions of plaintiff’s expert report that related to analysis of the “character-enabled (CE) network site” limitation, on the ground that the expert applied the wrong claim construction. Defendant argued that plaintiff’s expert’s plain and ordinary meaning was overly broad as compared to the agreed-upon construction. Defendant also moved for summary judgment of non-infringement based significantly on expert testimony contrasting relevant portions of the accused instrumentalities from the agreed-upon construction of the “character-enabled (CE) network site” limitation.
Plaintiff’s opposition to defendant’s motion for summary judgment relied heavily on the portions of its expert report that defendant sought to strike and appeared essentially to concede non-infringement if those portions were struck.
The district court granted the motion to strike and the motion for summary judgment. Plaintiff appealed.
On appeal, the CAFC affirmed.
Regarding the motion to strike, the CAFC found that there was no dispute that the expert failed to address the agreed-upon construction of the “character-enabled (CE) network site” limitation in his report. While plaintiff argued that the expert report should not have been stricken because it was not inconsistent with the agreed-upon construction, the CAFC found that the expert’s “overbroad” construction materially differed from the agreed-upon construction (including omitting several agreed-upon requirements), and thus the decision to strike the expert report was not an abuse of discretion.
Turning to summary judgment, the CAFC found that plaintiff failed to rebut defendant’s evidence of non-infringement and to establish a genuine issue of material fact regarding infringement, especially with respect to the accused instrumentalities meeting the agreed-upon construction of the “character-enabled (CE) network site” limitation. Accordingly, summary judgment of non-infringement was affirmed.
