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Last week, the Federal Circuit issued an opinion in <em>Treehouse Avatar LLC v. Valve Corporation</em>, No. 2022-1171 (Nov. 30, 2022), affirming the U.S District Court for the Western District of Washington’s holding striking portions of Treehouse’s expert report on infringement and granting summary judgment of noninfringement in favor of Valve.

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Treehouse owns U.S. Patent No. 8,180,858 (“the ’858 patent”), which is directed to a method of collecting data from an information network in response to a plurality of network users’ choices. &nbsp;Treehouse sued Valve, alleging that several of Valve’s video games infringe the ’858 patent. At issue in the lawsuit was the construction of the claim term “character-enabled network site” (“the CE limitation”). At the parties’ request, the district court adopted the construction of the CE limitation that the Patent Trial and Appeal Board had reached in a previous inter partes review. Treehouse’s infringement expert later submitted a report applying the plain and ordinary meaning of the CE limitation rather than the parties’ agreed-upon construction. Valve moved to strike the portions of the expert’s report applying the inconsistent claim construction. While the motion to strike was pending, Valve also moved for summary judgment of noninfringement, arguing that in the absence of Treehouse’s expert testimony, there was no evidence showing that the accused products met the CE limitation. The district court granted both motions, and Treehouse appealed.

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The Federal Circuit affirmed on both issues. The Court first found that a motion to strike expert testimony is properly granted when that testimony is “based on a claim construction that is materially different” than the district court’s construction. Because Treehouse’s infringement expert applied the plain and ordinary meaning of the CE limitation, and not the agreed-upon construction, the Court held that the district court did not abuse its discretion in striking the expert testimony. The Court also affirmed the district court’s grant of summary judgment of noninfringement in favor of Valve. The Court noted that to avoid summary judgment, Treehouse had the burden of establishing a genuine issue of material fact that Valve’s accused products performed every step of the asserted claims, including the CE limitation. But because the only evidence Treehouse provided was the stricken testimony of its infringement expert, the Court held that Treehouse failed to meet its burden and affirmed the district court’s grant of summary judgment.

12_06_22 CAFC Affirms Order Striking Expert Testimony and Granting Summary Judgment

CAFC Affirms Order Striking Expert Testimony and Granting Summary Judgment of Noninfringement

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