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In the only precedential patent opinion issued by the Federal Circuit this week, the Court affirmed a district court’s summary judgment ruling that appellee Valve Corporation’s popular “Dota 2” and “Team Fortress 2” online videogames did not infringe Treehouse Avatar’s U.S. Patent No. 8,180,858, finding that the district court did not err in striking portions of Treehouse’s infringement expert report that failed to apply an agreed claim construction adopted by the court.

The ’858 patent is directed to methods of collecting data from user choices involving videogame character attributes such as weapons or clothing, and uses the phrase “character-enabled (CE) network sites” for certain elements of the systems described in the claims.  The parties had agreed that the phrase should be construed to mean “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,” which the Court adopted.  On summary judgment, Valve presented evidence that because character and other data were downloaded to and presented from a user’s own device and not an external server, the accused videogames did not infringe.

In Treehouse’s expert report on infringement, its expert had not addressed the construction of the “(CE) network sites” limitation, excluding it from a list of construed terms and stating that for all other terms he had applied the “plain and ordinary meaning.”  Although the expert supplemented his report to state that the parties’ construction was the ordinary meaning and so did not alter his opinions, the district court and the Federal Circuit accepted Valve’s argument that the expert’s applied construction was broader than the agreed construction adopted by the court.  Holding that striking expert testimony “is not improper when such testimony is based on a claim construction that is materially different from the construction adopted by the parties and the court,” the Court noted that “any expert theory that does not rely upon that agreed-upon construction is suspect” and found that the district court did not err in striking Treehouse’s expert’s testimony.  Because Treehouse, as a result, did not provide admissible evidence to rebut Valve’s evidence of non-infringement, the Court affirmed the grant of summary judgment to Valve.

The opinion can be found here.

By Jason A. Wrubleski

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This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.