Wagner v. Ashline

Case: 21-1715 Document: 38 Page: 1 Filed: 11/17/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JULIE WAGNER,
Plaintiff-Appellant

v.

TREVOR ASHLINE, SIMPSON PERFORMANCE
PRODUCTS, INC.,
Defendants-Appellees
______________________

2021-1715
______________________

Appeal from the United States District Court for the
Western District of North Carolina in No. 5:18-cv-00123-
KDB-DCK, Judge Kenneth D. Bell.
______________________

Decided: November 17, 2021
______________________

JAMES KEVIN GROGAN, JEFFREY E. SCHILLER, Grogan,
Tuccillo & Vanderleeden, LLP, Springfield, MA, argued for
plaintiff-appellant. Also represented by LEON E. FARBMAN,
JOSEPH ROMAGNANO.

CRAIG NELSON KILLEN, Nelson Mullins Riley & Scar-
borough LLP, Charlotte, NC, argued for defendants-appel-
lees. Also represented by LAUREN GRACE MARIE HUNSTAD.
______________________
Case: 21-1715 Document: 38 Page: 2 Filed: 11/17/2021

2 WAGNER v. ASHLINE

Before DYK, HUGHES, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Julie G. Wagner appeals the United States District
Court for the Western District of North Carolina’s sum-
mary judgment denying Ms. Wagner’s claim to be added as
a joint inventor of U.S. Patent No. 8,272,074 under
35 U.S.C. § 256, as well as her related state law claims of
unjust enrichment, fraud, and constructive trust. Because
we agree with the district court that Ms. Wagner presented
insufficient evidence to corroborate her claim of joint inven-
torship as a matter of law, we affirm.
BACKGROUND
I
The ’074 patent is directed to a head and neck restraint
(HNR) device—a safety device for “controlling the head of
a driver during a high-performance vehicle collision” by
limiting the rotation of the driver’s head and the displace-
ment between the driver’s head and torso. ’074 patent, Ab-
stract.
The cast of characters in this case includes: (1) Simp-
son Performance Products, Inc., a motorsports equipment
supplier and the assignee of the ’074 patent; (2) Trevor P.
Ashline, the named inventor of the ’074 patent, who has
worked as an automotive safety design and testing engi-
neer for nearly three decades; and (3) Julie G. Wagner, a
registered nurse and named inventor of U.S. Patent No.
7,703,150, directed to a children’s safety vest having flaps
on the shoulder that confine the shoulder strap of a seatbelt
to maintain the proper slope across the wearer’s body.
Mr. Ashline began developing HNR devices in 2000,
marketing and selling those products through his compa-
nies Safety Solutions, Inc., LFT Technologies, Inc., or
Safety Dynamics, LLC. Safety Dynamics was the original
assignee of U.S. Patent Application No. 11/787,532—the
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WAGNER v. ASHLINE 3

application that became the ’074 patent—until it was ac-
quired by Simpson in 2010.
In 2001, Mr. Ashline began developing an HNR device
that combined a rigid support plate extending down a
driver’s back and across the driver’s shoulders as imple-
mented in competitors’ HNR devices with aspects of a strap
harness system previously invented by Mr. Ashline. This
device was disclosed in Mr. Ashline’s U.S. Patent No.
6,931,669 and marketed as the “R3 device.” Mr. Ashline
tested prototypes of the R3 device in laboratory and race-
track settings throughout 2002 and 2003.
Around the same time, Ms. Wagner, motivated by her
experience caring for patients injured in serious car acci-
dents, began developing her safety vest for children with
her business partner Charles F. Foley. Ms. Wagner and
Mr. Foley filed U.S. Patent Application No. 11/187,518 di-
rected to their safety vest in July 2005.
Ms. Wagner and Mr. Ashline crossed paths for the first
time in August 2003 when Ms. Wagner visited Mr. Ash-
line’s workplace to inquire about crash testing her safety
vest. Ms. Wagner also testified that they spoke on the
phone twice in 2004.
In September 2005, Ms. Wagner visited Mr. Ashline
and his wife, Nicole Filion-Ashline, at their home to con-
tinue discussing testing her vest. Ms. Wagner attested
that Mr. Ashline and Ms. Filion-Ashline reviewed her ’518
patent application during this meeting. J.A. 358–59 (Wag-
ner Dep. 95:16–96:23). Ms. Wagner also inquired about the
possibility of Mr. Ashline’s company manufacturing her
vest, and she left a physical prototype of the vest with
Mr. Ashline for evaluation purposes.
In October 2005, Ms. Wagner met with Mr. Ashline
and Ms. Filion-Ashline again, this time accompanied by
Arthur F. Cooksey, an acquaintance of Ms. Wagner’s who
worked in publishing and marketing. They discussed
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4 WAGNER v. ASHLINE

Ms. Wagner’s vest and a series of safety books for children
that Ms. Wagner wanted to create. Ms. Wagner’s brief de-
scribed an “ongoing collaboration” between herself and
Mr. Ashline, who continued to assist her with developing
the vest.
In March 2006, Ms. Wagner claims that she had a fight
with Ms. Filion-Ashline in which Ms. Filion-Ashline asked
Ms. Wagner to retrieve the prototype vest from the Ashline
home. The parties agree that this was the last time that
they communicated directly.
Later in 2006 and 2007, Mr. Ashline filed U.S. Provi-
sional Application No. 60/797,921 and then the ’532 appli-
cation (the application that led to the ’074 patent), directed
to a revised design of the R3 device, also known as the Hy-
brid device.
Claim 1 of the ’074 patent is representative:
A restraint device for controlling a driver’s head
during a vehicle collision, comprising:
a member having shoulder portions at least par-
tially positionable on top of at least a portion the
shoulders of the driver;
a tether attached to said member and adapted for
being attached to a helmet;
a strap attached to said member and adapted for
being attached to a vehicle's seat belt assembly;
and
wherein the seat belt assembly serves as an anchor
to control movement of the driver's head during a
vehicle collision when said strap is attached to the
seat belt assembly.
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WAGNER v. ASHLINE 5

’074 patent col. 13 l. 66–col. 14 l. 11 (emphasis added to
highlight limitation alleged to have been contributed by
Ms. Wagner). The shoulder portions are indicated by ref-
erence number 16 in Figure 2 of the ’074 patent.

’074 patent Fig. 2; see id. at col. 7 l. 62–col. 8 l. 20.
Ms. Wagner’s ’150 patent issued in April 2010 while
prosecution of Mr. Ashline’s ’532 application was ongoing.
Ms. Wagner testified that she called Mr. Ashline to inform
him of the issuance of her ’150 patent. When Mr. Ashline
never returned her call, Ms. Wagner became suspicious
and “went to look to see if the shoulder portions were taken
from [her].” J.A. 396 (Wagner Dep. 133:1–16). She then
took it upon herself to search the United States Patent and
Trademark Office’s database for patent applications listing
Mr. Ashline as an inventor and at that point became aware
of Mr. Ashline’s ’532 application. Ms. Wagner testified
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6 WAGNER v. ASHLINE

that when she saw the application, she “just knew it had
shoulder portions.” Id.
In August 2010, Ms. Wagner retained a patent attor-
ney who then sent a letter to Mr. Ashline’s patent attorney
demanding that the ’150 patent be disclosed to the Patent
Office as material to the prosecution of the ’532 application.
The letter made no mention of Ms. Wagner’s alleged co-in-
ventorship. Mr. Ashline’s attorney then cited the ’150 pa-
tent in an information disclosure statement, but the
Examiner did not rely on the ’150 patent in any rejection.
In December 2010, Mr. Ashline assigned the ’532 applica-
tion to Simpson. The ’074 patent issued from the ’532 ap-
plication in 2012.
II
In 2018, six years after the ’074 patent issued and eight
years after Ms. Wagner’s attorney sent a letter to Mr. Ash-
line’s attorney, Ms. Wagner sued Simpson and Mr. Ash-
line, seeking to be added as a joint inventor of the
’074 patent under 35 U.S.C. § 256. Ms. Wagner also as-
serted state law claims for fraud, unjust enrichment, and
constructive trust.
In February 2021, the trial court granted Simpson’s
and Mr. Ashline’s motion for summary judgment on each
of Ms. Wagner’s claims. Wagner v. Simpson Performance
Prods., Inc., CIVIL ACTION NO. 5:18-cv-00123-KDB-
DCK, 2021 WL 411144 (W.D.N.C. Feb. 5, 2021) (Judgment
Op.). Among other things, the court determined that
Ms. Wagner failed to provide sufficient corroboration of her
claim of joint inventorship. Id. at *5–7. Because Ms. Wag-
ner’s state law claims depended on her joint inventorship
claim, the trial court granted summary judgment to Simp-
son and Mr. Ashline on those claims as well.
Ms. Wagner appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
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WAGNER v. ASHLINE 7

DISCUSSION
We review a district court’s grant of summary judg-
ment under the law of the regional circuit, here the Fourth
Circuit. Syngenta Crop Protection, LLC v. Willowood, LLC,
944 F.3d 1344, 1355 (Fed. Cir. 2019). The Fourth Circuit
reviews a district court’s grant of summary judgment de
novo. Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d
310, 320 (4th Cir. 2014). Summary judgment is appropri-
ate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
I
We begin with Ms. Wagner’s joint inventorship claim.
Ms. Wagner alleges that she contributed to the “shoulder
portions” limitation in claim 1. Specifically, she asserts
that she contributed to the invention by conceiving of using
shoulder portions on top of the shoulders to keep the vehi-
cle’s shoulder belts in the correct position during a crash.
In support of her claim, Ms. Wagner testified that she
“consider[ed] [Mr. Ashline] a partner” and that she “knew
that [she] had a solution that would solve” the problem of
injuries resulting from seatbelt displacement in accidents.
J.A. 282 (Wagner Dep. 19:3–20:2). Ms. Wagner testified
that she and Mr. Ashline “talked about the need for shoul-
der portions for the race car drivers and how [she] thought
they should have [a] guiding restraining means and rela-
tive to the clavicle and with the shoulder belts” several
times. J.A. 358–59 (Wagner Dep. 95:5–96:3). Ms. Wagner
testified that her repeated insistence to Mr. Ashline that
he needed to “have a restraining guidance means on the
shoulder relative to the clavicle” inspired the “shoulder por-
tions” claim limitations in the ’074 patent. J.A. 283–85
(Wagner Dep. 20:13–22:18); see also J.A. 412–13 (Wagner
Dep. 149:8–150:24), 419 (Wagner Dep. 156:1–14), 426–29
(Wagner Dep. 163:5–166:12). According to Ms. Wagner,
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8 WAGNER v. ASHLINE

their business relationship unexpectedly soured in 2006
when Ms. Filion-Ashline purportedly called Ms. Wagner to
“come back and get [her] vest” because Mr. Ashline was
“going to make [his] own device.” J.A. 404–05 (Wagner
Dep. 141:12–142:8). Ms. Wagner alleged that she finally
discovered that the “shoulder portions[] were taken from”
her by Mr. Ashline and Simpson when, seven years later,
Robert Levi, a manufacturing contact of hers saw “pictures
that [Ms. Wagner] had of [her] vest.” J.A. 380–81, (Wagner
Dep. 117:17–118:21). Ms. Wagner testified that Mr. Levi
“shared a lab” with Mr. Ashline and had knowledge of a go-
kart vest manufactured and sold by Simpson. J.A. 382
(Wagner Dep. 119:4–16). It is Ms. Wagner’s contention
that, upon seeing her vest, Mr. Levi informed her that it
was “obvious that [Mr. Ashline and Simpson] stole from
[her].” J.A. 381–82 (Wagner Dep. 118:4–119:16).
An alleged co-inventor’s contribution to the conception
of the claim must be proven by clear and convincing evi-
dence. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456,
1461 (Fed. Cir. 1998). It is well established in our case law
that a party claiming joint inventorship must proffer evi-
dence corroborating her own testimony. This is because
oral testimony of the alleged co-inventor on its own will
generally not suffice as “clear and convincing” evidence of
joint inventorship. Price v. Symsek, 988 F.2d 1187,
1194–95 (Fed. Cir. 1993). Rather, the purported inventor
has the burden of providing “some evidence of independent
corroboration” of their contribution to the conception of the
invention as claimed. Coleman v. Dines, 754 F.2d 353, 360
(Fed. Cir. 1985). The corroboration requirement “pre-
vent[s] fraud, by providing independent confirmation of the
[alleged] inventor’s testimony” and “provides an additional
safeguard against courts being deceived by [alleged] inven-
tors who may be tempted to mischaracterize the events of
the past through their testimony.” Medichem, S.A. v. Ro-
labo, S.L., 437 F.3d 1157, 1171 (Fed. Cir. 2006); see also
Hess v. Advanced Cardiovascular Sys., Inc., 106 F.3d 976,
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WAGNER v. ASHLINE 9

980 (Fed. Cir. 1997). This requirement is applied as a
“rule-of-reason” demand for independent evidence, and
there is “no single formula that must be followed in proving
corroboration.” Price, 988 F.2d at 1195 (quoting Berry
v. Webb, 412 F.2d 261, 266 (C.C.P.A. 1969)). The issue of
whether an inventorship claim is sufficiently corroborated
is a “question of fact, with the district court’s determination
subject to review for clear error.” Fleming v. Escort Inc.,
774 F.3d 1371, 1377 (Fed. Cir. 2014).
The district court granted summary judgment of no
joint inventorship after concluding that the evidence
Ms. Wagner relied on as corroboration was not, as a matter
of law, sufficient to corroborate her testimony. Judgment
Op., 2021 WL 411144, at *6–7. We have affirmed a district
court’s summary judgment of no joint inventorship when
no reasonable fact finder could find that the record con-
tained sufficient evidence to corroborate the alleged joint
inventor’s claim. See, e.g., Stern v. Trs. Of Columbia Univ.,
434 F.3d 1375, 1378 (Fed. Cir. 2006) (granting summary
judgment where evidence was “insufficient to corroborate
[a] claim of co-inventorship”). For the reasons below, we
conclude that even when viewing all reasonable inferences
in Ms. Wagner’s favor, Ms. Wagner did not present suffi-
cient evidence of corroboration to support her claim of co-
inventorship as a matter of law.
Ms. Wagner first points us to the ’074 patent and the
patents from which the ’074 patent claims priority (“the
parent patents”) 1 to corroborate her testimony. Ms. Wag-
ner asserts that the fact that the parent patents did not
contain the phrase “shoulder portions,” while the ’921 pro-
visional and the ’532 application that Mr. Ashline allegedly
filed after their series of meetings did, corroborates her tes-
timony that she contributed the “shoulder portions”

1 The parent patents include Mr. Ashline’s ’669 pa-
tent and U.S. Patent No. 7,765,623.
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10 WAGNER v. ASHLINE

concept. We are not convinced. Even though the parent
patents did not expressly refer to “shoulder portions,” they
disclosed the concept of shoulder portions, as did Mr. Ash-
line’s prototype on which his patents were based and which
he developed before he met Ms. Wagner. J.A. 99–101,
127–37. For example, the parent patents both disclose:
The lateral extensions 28 extend a distance along
the driver’s shoulders in order to provide suitable
placement of the shoulder straps 20 and to assist
in maintaining the restraint device 10 in position
on the driver, particularly during an angular-
frontal collision.
’623 patent col. 6 ll. 43–47; ’669 patent col. 7 ll. 3–7. An
example of these “lateral extensions 28” is illustrated in
Figure 2 of the ’623 patent:

’623 patent Fig. 2
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WAGNER v. ASHLINE 11

As shown above, the lateral extensions 28 are position-
able on top of at least a portion of a driver’s shoulders. The
same is shown in Figure 2 of the ’669 patent. Thus, the
concept of shoulder portions as claimed in the ’074 patent
was already previously disclosed by Mr. Ashline in the par-
ent patents. Therefore, the parent patents do not corrobo-
rate Ms. Wagner’s testimony that she conceived of and
contributed to the “shoulder portions” claimed in the
’074 patent.
Next, Ms. Wagner relies on Mr. Cooksey’s deposition
testimony to corroborate her testimony. But Mr. Cooksey
only testified as to the details of a single meeting at which
he was present. Moreover, he testified that the meeting
focused on Ms. Wagner’s vest and her idea for a series of
children’s books. Judgment Op., 2021 WL 411144, at *6;
see also J.A. 751 (Cooksey Dep. 21:2–15). Contrary to
Ms. Wagner’s characterization, Mr. Cooksey’s testimony
contained no further details to support that Ms. Wagner
and Mr. Ashline ever discussed Mr. Ashline’s invention.
And when questioned about his meeting with Ms. Wagner,
Mr. Ashline, and Ms. Filion-Ashline, Mr. Cooksey stated:
“I don’t recall a whole lot.” J.A. 756 (Cooksey Dep. 26:2–8).
We agree with the district court that Mr. Cooksey’s testi-
mony corroborates only the undisputed fact that Mr. Ash-
line and Ms. Wagner met and that they discussed
Ms. Wagner’s vest and her idea for a series of children’s
books. It does not corroborate Ms. Wagner’s testimony in
support of her claim of joint inventorship of the ’074 patent.
As the district court aptly stated, evidence that Mr. Ashline
assisted Ms. Wagner is not evidence that Ms. Wagner as-
sisted Mr. Ashline. Judgment Op., 2021 WL 411144, at *6.
Finally, Ms. Wagner argues that Mr. Ashline’s deposi-
tion testimony corroborates her testimony that they met
and spoke several times, and that she explained to him the
concept of “shoulder portions.” Mr. Ashline’s testimony
confirms that he and Ms. Wagner met and discussed test-
ing Ms. Wagner’s vest, J.A. 591–92 (Ashline Dep.
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12 WAGNER v. ASHLINE

49:3–50:17) and Ms. Wagner’s idea for a children’s book se-
ries, J.A. 595 (Ashline Dep. 53:8–11). In addition, Mr. Ash-
line’s testimony confirms that Ms. Wagner desired
Mr. Cooksey “to do the marketing” for one of Mr. Ashline’s
go-kart racing products. J.A. 595 (Ashline Dep. 53:12–18).
Finally, Mr. Ashline’s testimony confirms that Ms. Wagner
left a physical prototype of her vest with him. J.A. 600
(Ashline Dep. 58:6–25). Ms. Wagner claims that this testi-
mony regarding these meetings and events corroborates
the rest of her testimony, including that she advised Mr.
Ashline on his invention and specifically told him to add
shoulder portions. We disagree.
Considering the record as a whole, including Mr. Ash-
line’s testimony and all of the other evidence relied on by
Ms. Wagner, we agree with the district court’s determina-
tion that Ms. Wagner failed to present sufficient corrobo-
rating evidence for her claim of joint inventorship as a
matter of law. At best, the allegedly corroborating evidence
demonstrates that Ms. Wagner and Mr. Ashline met and
spoke several times over a period of three years, during
which Ms. Wagner sought and received guidance from
Mr. Ashline regarding her vest and/or a series of children’s
books.
In this regard, this case is similar to Symantec Corp. v.
Computer Associates International, Inc., 522 F.3d 1279
(Fed. Cir. 2008), where we affirmed the district court’s
summary judgment that an alleged co-inventor failed to es-
tablish a genuine issue of material fact that he was a co-
inventor. In Symantec, the district court found that the al-
legedly corroborating evidence, a day planner, at most
showed that the alleged co-inventor and the inventor spoke
about the then-current state of the prior art. Id. at 1296.
The court emphasized that this evidence “[did] not estab-
lish that [the purported co-inventor] contributed to the
idea.” Id. Likewise, the allegedly corroborating evidence
here does not support that Ms. Wagner contributed to
Mr. Ashline’s patent application strategy or device design.
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WAGNER v. ASHLINE 13

Specifically, Ms. Ashline’s allegedly corroborating evidence
supports only the non-material aspects of her testimony
and does not support the material aspects.
We recognize that the rule of reason does not require
that every detail of an alleged inventor’s testimony be cor-
roborated. Fleming, 774 F.3d at 1377 (citing Cooper
v. Goldfarb, 154 F.3d 1321, 1331 (Fed. Cir. 1998)). But
there must be more evidence than what Ms. Wagner pre-
sented here. Based on the minimal extent of the corrobo-
rating evidence, we are not persuaded that the district
court erred in concluding that no reasonable fact finder
could find that Ms. Wagner presented sufficient corrobora-
tion for her claim of joint inventorship.
II
Ms. Wagner raises two additional issues on appeal,
challenging the district court’s claim construction and its
determination that her state law claims were barred by the
statute of limitations. Because we affirm the district
court’s summary judgment denying her claim of joint in-
ventorship due to insufficient corroboration, we need not
reach the district court’s claim construction. And because
Ms. Wagner’s claims of unjust enrichment, fraud, and con-
structive trust depend on her joint inventorship status, our
ruling on inventorship is dispositive as to those state law
claims.
CONCLUSION
We have considered Ms. Wagner’s remaining argu-
ments and find them unpersuasive. Because the district
court properly granted summary judgment, we affirm.
AFFIRMED