Gamevice, Inc. v. Nintendo Co., Ltd., Nintendo of America, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GAMEVICE, INC.,
Plaintiff-Appellant
v.
NINTENDO CO., LTD., NINTENDO OF AMERICA,
INC.,
Defendants-Appellees
______________________
2024-1467
______________________
Appeal from the United States District Court for the
Northern District of California in No. 3:18-cv-01942-RS,
Judge Richard Seeborg.
______________________
Decided: January 16, 2026
______________________
ERIK R. P UKNYS , Finnegan, Henderson, Farabow, Gar-
rett & Dunner, LLP, Washington, DC, argued for plaintiff-
appellant. Also represented by J AMES R. BARNEY , SMITH
BRITTINGHAM , IV.
D AN L. BAGATELL , Perkins Coie LLP, Hanover, NH, ar-
gued for defendants-appellees. Also represented by G RANT
EDWARD K INSEL , T HERESA H. N GUYEN, Seattle, WA.
______________________
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GAMEVICE, INC. v. NINTENDO CO., LTD. 2
Before M OORE, Chief Judge, CHEN, Circuit Judge, and
ANDREWS , District Judge.1
CHEN, Circuit Judge
Gamevice, Inc. (Gamevice) appeals a decision by the
United States District Court for the Northern District of
California granting summary judgment of noninfringe-
ment in favor of Nintendo of America, Inc. and Nintendo
Co., Ltd. (collectively, Nintendo). Gamevice, Inc. v. Nin-
tendo Co., No. 18-CV-01942-RS, 2023 WL 7194871 (N.D.
Cal. Oct. 31, 2023) (Summary Judgment Order). The dis-
trict court determined that the Nintendo Switch console
(Switch) did not infringe claims 3, 4, 6, 7, and 16 of U.S.
Patent No. 9,808,713 (’713 patent) and claim 6 of U.S. Pa-
tent No. 10,391,393 (’393 patent) because the Switch does
not have (1) “confinement structures” that hold a compu-
ting device and (2) “apertures” that “secure an instruc-
tional input device.” See id. at *7. For the reasons
explained below, we affirm and remand.
BACKGROUND
Gamevice brought this case against Nintendo, alleging
that Nintendo infringed three of its patents—the ’393 pa-
tent, the ’713 patent, and United States Patent No.
9,855,498 (’498 patent)—all of which have the same ti-
tle: “Game Controller with Structural Bridge.” During the
course of the litigation, the district court invalidated all the
asserted claims of the ’498 patent,2 narrowing the dispute
to claims 3, 4, 6, 7, and 16 of the ’713 patent and claim 6 of
the ’393 patent. See Gamevice, Inc. v. Nintendo Co., 661 F.
1 Honorable Richard G. Andrews, District Judge,
United States District Judge for the District of Delaware,
sitting by designation.
2 The invalidated asserted claims of the ’498 patent
are not on appeal.
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GAMEVICE, INC. v. NINTENDO CO., LTD. 3
Supp. 3d 971, 980 (N.D. Cal.), on reconsideration, 677 F.
Supp. 3d 1069 (N.D. Cal. 2023); Gamevice, Inc. v. Nintendo
Co., 677 F. Supp. 3d 1069, 1075 (N.D. Cal. 2023).
The ’713 and ’393 patents (asserted patents) disclose
an accessory device that attaches to a handheld computing
device and enables users to play games. See ’713 patent at
Abstract; ’393 patent at Abstract. Specifically, the asserted
patents describe a combination of (1) a “computing device”
with a display screen, such as a smartphone or tablet, and
(2) an accessory that can be attached to opposing sides of
the computing device to provide controls for gameplay—
buttons and joysticks—and can be removed to return the
device to normal operation. See ’713 patent, col. 1 ll. 24–
46; ’393 patent, col. 1 ll. 32–54.
’713 patent at FIG. 13; ’393 patent at FIG. 13. Relevant to
this appeal, the asserted patents disclose a “pair of control
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GAMEVICE, INC. v. NINTENDO CO., LTD. 4
modules 252” having “input module apertures 254,” each
aperture securing “an instructional input device 256.” ’713
patent, col. 8 ll. 15–20; ’393 patent, col. 8 ll. 22–27. The
asserted patents explain that the input device can be but-
tons or a joystick. See ’713 patent, col. 5 ll. 45–49; ’393 pa-
tent, col. 5 ll. 53–57. Before us, the parties dispute the
terms “computing device,” “confinement structures,” and
“input module apertures” that “secure” “instructional input
devices.” See Appellant Br. 21–24; Appellee Br. 3–4.3
In the proceedings below, the district court construed
“a pair of confinement structures/confinement structure” to
mean “physical component(s) that hold[] a computing de-
vice.” Gamevice, Inc. v. Nintendo Co., No. 18-CV-01942-RS,
2023 WL 322901, at *10 (N.D. Cal. Jan. 19, 2023) (Mark-
man Order). The court further construed “computing de-
vice” to mean “electronic equipment controlled by a CPU.”
Id. Although the court did not construe the term “input
module apertures,” it gave “aperture” its plain and ordi-
nary meaning—“hole”—in the summary judgment order on
appeal. Summary Judgment Order, 2023 WL 7194871, at
*6.
With these constructions, the district court granted
Nintendo’s motion for summary judgment of noninfringe-
ment of all the remaining claims. It examined the alleged
infringing product—the Switch—which includes a console
and two “Joy-Con” controllers that slide into the side rails
attached to the opposite ends of the console. It determined
that there is no genuine dispute of material fact that the
Switch lacks the claimed “confinement structures” that
hold a “computing device,” nor does it have the required
3 Gamevice states that claims 1 and 3 of the ’713 pa-
tent are representative claims, Appellant Br. 11–13, and
Nintendo does not contest such characterization, see gener-
ally Appellee Br. We accordingly cite to these representa-
tive claims of the ’713 patent.
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GAMEVICE, INC. v. NINTENDO CO., LTD. 5
“apertures” that “secure” an instructional input device. Id.
at *6–7. The district court also held, in the alternative,
that most of those claims, i.e., claims 1, 2, 8, and 17–19 of
the ’713 patent and claims 1–4 and 7 of the ’393 patent,
were invalid as anticipated by the Nintendo Switch. See
Gamevice, Inc. v. Nintendo Co., 661 F. Supp. 3d 971, 980
(N.D. Cal.), on reconsideration, 677 F. Supp. 3d 1069 (N.D.
Cal. 2023). Gamevice now appeals the district court’s rul-
ings. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
S TANDARD OF REVIEW
We review a district court’s grant of summary judg-
ment under the law of the regional circuit. Ethicon Endo-
Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1315 (Fed.
Cir. 2015). The Ninth Circuit reviews a district court’s
grant of summary judgment de novo. Arconic, Inc. v. APC
Inv. Co., 969 F.3d 945, 950 (9th Cir. 2020). “Claim con-
struction is reviewed de novo, and any underlying factual
determinations are reviewed for clear error.” Azurity
Pharms., Inc. v. Alkem Lab’ys Ltd., 133 F.4th 1359, 1363
(Fed. Cir. 2025).
D ISCUSSION
The district court granted summary judgment of non-
infringement on two independent grounds, determining
that no genuine issue of material fact exists as to whether
the Switch has the claimed “confinement structures” or the
claimed “apertures” that “secure an instructional input de-
vice.” Summary Judgment Order, 2023 WL 7194871, at *7.
The district court held that there is no genuine dispute of
material fact that the Switch does not possess “input mod-
ule apertures” that secure the Switch’s buttons or joysticks
for two separate reasons: (1) the Switch joysticks are se-
cured with screws, not apertures; and (2) the 0.2mm radial
clearance between the respective Switch apertures and the
buttons and joysticks demonstrates that the apertures do
not secure the buttons and joysticks. Summary Judgment
Order, 2023 WL 7194871, at *6. We agree the Switch lacks
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GAMEVICE, INC. v. NINTENDO CO., LTD. 6
the claimed “apertures” and therefore affirm the grant of
summary judgment for Nintendo on that ground alone.4
The asserted claims require “each” of the “input module
apertures” to “secure[] an instructional input device.” See,
e.g., ’713 patent, col. 18, ll. 15–18 (emphasis added). This
means all apertures must individually secure their respec-
tive input devices. See ResQNet.com, Inc. v. Lansa, Inc.,
346 F.3d 1374, 1379 (Fed. Cir. 2003) (claim language re-
quiring algorithm to evaluates attributes of “each field” re-
quired the algorithm to use “all fields”). As Gamevice
concedes, “‘instructional input devices’ include both but-
tons and joysticks.” Appellant Br. 45–46. Therefore, both
the Switch’s buttons and joysticks must be secured by the
apertures.5
Here, neither the Switch buttons nor joysticks are se-
cured by the apertures. It is undisputed that “secure”
4 During oral argument, Nintendo conceded that we
can affirm the district court’s grant of summary judgment
of noninfringement without addressing the district court’s
potentially inconsistent invalidity findings because the dis-
trict court ruled in the alternative that the Switch also did
not infringe the invalidated claims. Oral Arg. at
32:45 – 34:10 (available at
https://www.cafc.uscourts.gov/oral-arguments/24-1467_09
042025.mp3); see also J.A. 966. Nintendo agreed to file a
motion on remand, asking the district court to reconsider
its invalidity ruling and simply adopt the alternative non-
infringement ground. Id.
5 Gamevice argues that Nintendo waived this argu-
ment on appeal because it was not raised below. Appellant
Resp. 16. Not so. In its motion for summary judgment,
Nintendo argued that the Switch does not meet the “input
modules apertures” limitation because “[t]he buttons and
joysticks are not secured by the holes.” J.A. 856 (emphasis
added).
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GAMEVICE, INC. v. NINTENDO CO., LTD. 7
means “hold in place” and that “aperture” is a “hole.” See
generally, Appellant Br.; Appellee Br.; Appellant Resp.
“[T]he parties [also] agree that the buttons are held in by a
flange at the bottom.” Summary Judgment Order, 2023
WL 7194871, at *6. That is, it is not disputed that the
flange, to which the Switch buttons are attached, is secured
in position by the rubber actuator, circuit board, and pins,
all of which are sandwiched between the upper and lower
housings of the Joy-Con controller, see J.A. 2503 (Nintendo
engineer who designed the Switch describing how the com-
bination of the rubber flange and the circuit board secured
the buttons); J.A. 876–77. The holes, through which the
Switch buttons and joysticks protrude, are larger in size
than the buttons and joysticks, and thus do no work to se-
cure these input devices in a fixed position. Summary judg-
ment is therefore proper because the buttons are not
secured by the claimed apertures.
Even assuming the buttons are secured by the aper-
tures, Gamevice still cannot prevail. Because the Switch
joysticks are undisputedly secured to the upper housing
with screws rather than apertures, the Switch fails to meet
the “input module apertures” limitation. See J.A. 2503
(Nintendo engineer who designed the Switch attesting that
“the joystick passes through the hole and then is secured to
the upper housing with two M1.4 x 3.5 screws”). The dis-
trict court thus correctly concluded that “[e]ven if the
[Switch controller’s] buttons . . . comport with the claim
limitation, the joysticks [of the controller] are not secured
with the apertures but with screws” and therefore the
Switch controller does not meet the “input module aper-
tures” limitation. Summary Judgment Order, 2023 WL
7194871, at *6.
Gamevice contends the district court erred in two re-
spects. First, the court’s statement that “apertures them-
selves cannot secure anything” contradicts the patent
specification, which shows that “each input module aper-
ture 254[] secures an instructional input device 256.”
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GAMEVICE, INC. v. NINTENDO CO., LTD. 8
Appellant Br. 43–44 (citing ’713 patent, col. 8 ll. 18–23).
Second, the court improperly construed “secure” to exclude
the use of additional components, such as a flange or a
screw, to hold the instructional input device in place. Id.
at 45. Because the specification is silent on how the but-
tons are secured, Gamevice contends the claimed inven-
tions are agnostic as to whether additional components are
used to secure the instructional input devices. Id. (citation
omitted).
Gamevice misreads the district court’s summary judg-
ment order. First, the district court did not say that the
claimed apertures categorically “cannot secure anything.”
Rather, it found that the specific apertures Gamevice iden-
tified in the accused Switch “themselves cannot secure an-
ything [because] the parties agree that the buttons are held
in by a flange at the bottom.” Summary Judgment Order,
2023 WL 7194871, at *6. Second, to the extent that
Gamevice now construes “secure” to allow for the use of
housing material surrounding the holes (and not the holes
themselves) to hold the instructional input devices in place,
Gamevice never requested such a construction in front of
the district court. See Markman Order, 2023 WL 322901,
at *3 (“[t]he parties present ten disputed terms for con-
structions,” none of which relates to the “input module ap-
ertures” limitation). Even if this argument is not waived,
Gamevice does not point to any part of the specification or
its expert report to support this construction. See Appel-
lant Br. 45.
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GAMEVICE, INC. v. NINTENDO CO., LTD. 9
Gamevice’s expert did not advance such a construction,
but simply identified the “multiple openings for the Joy-
Con buttons and joysticks . . . ” as “input module aper-
tures . . . [that] secure[] multiple instructional input de-
vices, including joysticks and buttons.” J.A. 2560 ¶ 81
(Gamevice’s expert report).
Id. The specification also does not define “secure” to in-
clude the use of any housing materials apart from the ap-
ertures themselves, and we see reason to do so. See
Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362,
1365 (Fed. Cir. 2012) (“To act as its own lexicographer, a
patentee must clearly set forth a definition of the claim
term other than its plain and ordinary meaning” and must
“clearly express an intent to redefine the term.” (interna-
tional quotations omitted)).
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GAMEVICE, INC. v. NINTENDO CO., LTD. 10
Gamevice alternatively contends the district court im-
properly discounted its expert’s testimony that the holes
secure the buttons through the relative size of the holes
compared to the size of the flange. See Appellant Br. 45.
Its expert testified that “it is th[e] interaction of [the] flange
with the holes, and the proper sizing of the holes, that al-
lows the button to both protrude from the housing and yet
still be secured in place. . . . [I]f the holes were bigger than
the flange, the buttons would fall out, so the size of the
holes secures the buttons in place.” Appellant Br. 45 (citing
J.A. 941 ¶ 54). Gamevice faults the district court for focus-
ing on the joysticks while ignoring that the buttons are se-
cured using the input module apertures. Id. at 45–46.
Because “instructional input devices” include both buttons
and joysticks, Gamevice contends infringement is estab-
lished if the apertures secure the buttons, regardless of
whether they secure the joysticks. Id.
Gamevice is wrong. Its expert’s counterfactual—that
buttons would fall out if the holes were larger—does not
show that the holes secure the buttons. The problem with
this argument is that it fails to acknowledge, that under
this theory, it is the wall material surrounding the hole—
not the hole itself—that performs any securing function.
Here, the Switch buttons are secured by a flange on their
back side that is larger than the holes through which the
buttons protrude. See J.A. 2503 (Nintendo engineer who
designed the Switch testifying that “[t]he flange on the
backside of the buttons prevents the buttons from falling
through the holes in the housing.”). As discussed previ-
ously, this flange is “secured and supported from behind by
the . . . [rubber] Actuator Contact,” which is “sandwiched
between the housing and a printed circuit board, which is
fastened to the housing with screws.” J.A. 876. Accord-
ingly, it is “the combination of the housing and actuator
contact, not the holes . . ., [that] secures and supports the
buttons when the buttons are not being pressed.” Id. at
877. Gamevice’s own expert does not rebut that the Switch
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GAMEVICE, INC. v. NINTENDO CO., LTD. 11
holes merely “allow the buttons and joysticks to pass
through and move within.” J.A. 875; see 940–41 ¶¶ 50, 54.
Neither the specification nor the prosecution history rede-
fines “apertures” to include the surrounding housing mate-
rial, and Gamevice never requested such a construction
below. The district court thus correctly found no genuine
dispute of material fact that the identified apertures do not
“secure” the buttons. In any event, Gamevice’s argument
does not address the undisputed fact that the Joy-Con’s joy-
sticks are held in place by screws—not by the apertures
through which they protrude. See Summary Judgment Or-
der, 2023 WL 7194871, at *6. Gamevice therefore cannot
prove that both the buttons and joysticks are secured by
the Switch’s purported apertures, making summary judg-
ment proper.
CONCLUSION
We have considered Gamevice’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm and remand to permit Nintendo to move the district
court to vacate its invalidity ruling and enter judgment
based on noninfringement.
AFFIRMED AND REMANDED
COSTS
No costs.
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