Case: 21-1857 Document: 40 Page: 1 Filed: 04/22/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ASCION, LLC, DBA REVERIE,
Plaintiff-Appellant
v.
ASHLEY FURNITURE INDUSTRIES, INC.,
Defendant
______________________
2021-1857
______________________
Appeal from the United States District Court for the
Western District of Wisconsin in No. 3:19-cv-00856-jdp,
Judge James D. Peterson.
______________________
Decided: April 22, 2022
______________________
MATTHEW CHRISTIAN HOLOHAN, Sheridan Ross P.C.,
Denver, CO, argued for plaintiff-appellant. Also repre-
sented by ROBERT R. BRUNELLI; BRIAN G. GILPIN, Godfrey
& Kahn, S.C., Milwaukee, WI; JENNIFER GREGOR, Madison,
WI.
______________________
Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Case: 21-1857 Document: 40 Page: 2 Filed: 04/22/2022
2 ASCION, LLC v. ASHLEY FURNITURE INDUSTRIES, INC.
Ascion, LLC, dba Reverie appeals from the Western
District of Wisconsin’s summary judgment decision deter-
mining that
U.S. Patent No. 9,451,833 is invalid for lack of
adequate written description. Because we conclude that a
genuine issue of material fact exists, we vacate and remand
for further proceedings.
I
Ascion owns the ’833 patent, which is directed to a cus-
tomizable mattress support system that includes a frame
and modular legs. The modular legs come in pieces of dif-
ferent lengths that can be used singularly or stacked and
threaded together to support the frame at different heights.
The limitation at issue in this appeal involves the “substan-
tially horizontal bottom surface” of one of those leg pieces,
a “leg member.” ’833 patent, 62:62–63:3. A portion of
Claim 1 is illustrative:
a first leg member having a body portion with an
outer surface, a top end and an opposite bottom
end, the top end having a top surface and the bot-
tom end having a substantially horizontal bottom
surface, the outer surface extending beyond the top
surface and having a top edge such that the top sur-
face is recessed relative to the top edge, body por-
tion having a first top-to-bottom length defined
between the top edge and bottom surface;
Id. (emphasis added).
In October 2019, Ascion filed this patent infringement
suit against Ashley Furniture Industries, Inc., and Ashley
filed a declaratory judgment invalidity counterclaim in re-
sponse. Ascion eventually conceded that Ashley’s Good
model bed, the only accused product at the time, did not
infringe the ’833 patent. Ascion entered a covenant not to
sue Ashley on that model and moved to dismiss Ashley’s
declaratory judgment counterclaim. The district court de-
nied that motion, finding that it still had jurisdiction over
Case: 21-1857 Document: 40 Page: 3 Filed: 04/22/2022
ASCION, LLC v. ASHLEY FURNITURE INDUSTRIES, INC. 3
Ashley’s counterclaim because Ascion could still accuse
(and had attempted to accuse) other Ashley bed models.
Ashley moved for summary judgment on its invalidity
counterclaim. The district court granted Ashley’s motion,
finding that the claim limitation requiring a leg member to
have a “substantially horizontal bottom surface” lacked ad-
equate written description support. Ascion appeals. Ashley
has notified this court that Ashley and Ascion have reached
a settlement agreement. Pursuant to that agreement, Ash-
ley agreed not to file an Appellee’s Brief in this appeal, and
so we proceed solely on Ascion’s brief and oral argument.
We have jurisdiction under
28 U.S.C. § 1295(a)(1).
II
We review the grant of summary judgment under the
law of the regional circuit. Ineos USA LLC v. Berry Plastics
Corp.,
783 F.3d 865, 868 (Fed. Cir. 2015). The Seventh Cir-
cuit reviews a district court’s grant of summary judgment
de novo. James v. Hale,
959 F.3d 307, 314 (7th Cir. 2020).
Summary judgment is appropriate when “there is no genu-
ine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A patent’s written description is sufficient if “the dis-
closure of the application relied upon reasonably conveys
to those skilled in the art that the inventor had possession
of the claimed subject matter as of the filing date.” Ariad
Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351
(Fed. Cir. 2010) (en banc). This inquiry is a question of fact
that “will necessarily vary depending on the context,” in-
cluding “the nature and scope of the claims and . . . the
complexity and predictability of the relevant technology.”
Id.
III
At the summary judgment stage, “the judge’s function
is not . . . to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine
Case: 21-1857 Document: 40 Page: 4 Filed: 04/22/2022
4 ASCION, LLC v. ASHLEY FURNITURE INDUSTRIES, INC.
issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S.
242, 249 (1986). Fact-finding at such time “is an inappro-
priate exercise, at either the appellate or the district court
level.” Lemelson v. TRW, Inc.,
760 F.2d 1254, 1260 (Fed.
Cir. 1985). Thus, if a reasonable factfinder “could find in
favor of the non-moving party, a trial court must stay its
hand and deny summary judgment.” Spigen Korea Co.,
Ltd. v. Ultraproof, Inc.,
955 F.3d 1379, 1384 (Fed. Cir.
2020).
Ascion argues that the district court erred by resolving
an issue of fact genuinely in dispute: whether the ’833 pa-
tent’s disclosure “clearly allows persons of ordinary skill in
the art to recognize that the inventor invented” a leg mem-
ber with a substantially horizontal bottom surface. Inphi
Corp. v. Netlist, Inc.,
805 F.3d 1350, 1355 (2015) (cleaned
up). We agree.
The district court examined the ’833 patent’s specifica-
tion, including the three figures depicting the modular legs,
reproduced below:
It noted that “[t]he bottom surface of the leg members is
not discussed at all in the 12 lines of the specification de-
voted to the leg assembly.” J.A. 10; see ’833 patent, 57:25–
Case: 21-1857 Document: 40 Page: 5 Filed: 04/22/2022
ASCION, LLC v. ASHLEY FURNITURE INDUSTRIES, INC. 5
37. “And the bottoms cannot be seen” in the figures depict-
ing the leg assemblies. J.A. 10. The district court concluded
that “[t]he specification simply does not provide any infor-
mation about the configuration of the bottom of the leg as-
sembly members.” J.A. 11–12. Ascion argues that other
factual inferences could be drawn from the specification;
namely, a skilled artisan “would have looked at the top sur-
faces [of the leg assemblies] and understood that the joined
bottom surfaces were of a particular ‘substantially horizon-
tal’ structure that matched the top surfaces.” Appellant’s
Br. 17.
Written description is a question of fact, and while it
may be “amenable to summary judgment in cases where no
reasonable fact finder could return a verdict for the non-
moving party,” PowerOasis, Inc. v. T-Mobile USA, Inc.,
522 F.3d 1299, 1307 (Fed. Cir. 2008), we conclude that this
is not the case here. In the “fairly predictable field” of me-
chanical inventions, Bilstad v. Wakalopulos,
386 F.3d
1116, 1126 (Fed. Cir. 2004), where “a lower level of detail
is required to satisfy the written description requirement
than for unpredictable arts,” Hologic, Inc. v. Smith &
Nephew, Inc.,
884 F.3d 1357, 1361 (Fed. Cir. 2018), a rea-
sonable factfinder could conceivably find that a skilled ar-
tisan would understand that the specification discloses leg
members with substantially horizontal bottom surfaces.
Accordingly, a genuine issue of material fact—whether the
specification discloses those bottom surfaces—remains. We
vacate the district court’s grant of summary judgment and
remand for further proceedings consistent with this opin-
ion.
VACATED AND REMANDED
COSTS
No costs.
