Case: 22-1001 Document: 48 Page: 1 Filed: 12/20/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MOSAIC BRANDS, INC.,
`Plaintiff/Counterclaim Defendant-Appellant
`
`LE HOLDINGS LLC, JGL ENTERPRISES INC.,
`Third-Party Defendants-Appellees
`
`v.
`
`RIDGE WALLET LLC,
`Defendant/Third Party Plaintiff/Counterclaimant-Cross-
`Appellant
`______________________
`
`2022-1001, 2022-1002
`______________________
`
`Appeals from the United States District Court for the
`Central District of California in No. 2:20-cv-04556-AB-JC,
`Judge Andre Birotte, Jr.
`______________________
`
`Decided: December 20, 2022
`______________________
`
`STEPHEN M. LOBBIN, SML Avvocati PC, La Jolla, CA,
`argued for plaintiff/counterclaim defendant-appellant and
`third-party defendants-appellees.
`
` BENJAMIN EDWARD WEED, K&L Gates LLP, Chicago,
`IL, argued for defendant/third party plaintiff/counter-
`claimant-cross-appellant. Also represented by GINA A.
`
`

`

`Case: 22-1001 Document: 48 Page: 2 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
`
`JOHNSON; MICHAEL HARRIS, JONATHAN PEARCE, SoCal IP
`Law Group LLP, Westlake Village, CA.
` ______________________
`
`Before NEWMAN, PROST, and STARK, Circuit Judges.
`STARK, Circuit Judge.
`
`This is an intellectual property case about wallets. Mo-
`saic Brands, Inc. d/b/a Storus (“Mosaic”) and Ridge Wallet
`LLC (“Ridge”) make similar money-clip wallets. Each com-
`pany accuses the other of patent infringement. Mosaic as-
`serts that Ridge infringes its U.S. Patent No. 7,334,616
`(“’616 patent”) as well as Mosaic’s trade dress. Ridge de-
`nies these allegations and further contends that Mosaic in-
`fringes its U.S. Patent No. 10,791,808 (“’808 patent”).
`Following claim construction, the parties stipulated
`that Mosaic cannot prove infringement of its ’616 patent.
`The District Court then granted summary judgment of in-
`validity of Ridge’s ’808 patent, based on anticipation, and
`denied Mosaic’s motion for summary judgment that Ridge
`had obtained its ’808 patent through inequitable conduct.
`The District Court also granted summary judgment to
`Ridge on Mosaic’s trade dress claim, finding the trade dress
`invalid on multiple grounds. Mosaic and Ridge both ap-
`pealed.
`As explained below, we affirm the District Court’s
`claim construction and, accordingly, its dismissal of Mo-
`saic’s claim that Ridge infringes the ’616 patent. However,
`because we find genuine disputes of material fact as to
`whether Mosaic’s Smart Money Clip II product is prior art
`to Ridge’s patent, we reverse the grant of summary judg-
`ment of invalidity of Ridge’s ’808 patent. We also vacate
`the District Court’s denial of summary judgment on Mo-
`saic’s inequitable conduct defense. Finally, we affirm the
`District Court’s grant of summary judgment that Mosaic’s
`trade dress is invalid.
`
`

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`Case: 22-1001 Document: 48 Page: 3 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`3
`
`I
`Mosaic manufactures a money-clip wallet called the
`Smart Money Clip II (“SMCII”). Ridge makes a wallet,
`named the Ridge Wallet,1 that is nearly identical to the
`SMCII. When Mosaic learned of the Ridge Wallet, it sued
`Ridge for infringement of its ’616 patent and its trade
`dress. A few months later, the U.S. Patent and Trademark
`Office (“PTO”) issued the ’808 patent to Ridge, and Ridge
`promptly asserted a counterclaim against Mosaic for in-
`fringing the newly issued patent.2 Mosaic then raised af-
`firmative defenses of invalidity and unenforceability due to
`inequitable conduct; it did not, however, assert inequitable
`conduct as a counterclaim.3
`
`
`1 We refer to the company as “Ridge” and the product
`as the “Ridge Wallet.”
`2 Ridge also filed a third-party complaint against LE
`Holdings, LLC and JGL Enterprises, seeking a declaratory
`judgment of unenforceability of Mosaic’s ’616 patent and
`Mosaic’s alleged trade dress. Mosaic contends it has re-
`ceived an exclusive license to this intellectual property
`from LE Holdings and that JGL Enterprises is the owner
`of any trade dress in the SMCII. No issues concerning the
`accusations noted in this footnote are part of this appeal.
`In light of our disposition, it will be for the District Court
`to determine whether – and, if so, what – additional pro-
`ceedings are needed with respect to these matters.
`3 See generally Agfa Corp. v. Creo Prods. Inc., 451
`F.3d 1366, 1371 (Fed. Cir. 2006) (recognizing that inequi-
`table conduct may be raised as either defense or counter-
`claim); see also Cardinal Chem. Co. v. Morton Int’l, Inc.,
`508 U.S. 83, 93–94 (1993) (distinguishing between affirm-
`ative defenses and counterclaims in patent cases).
`
`

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`Case: 22-1001 Document: 48 Page: 4 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`The District Court treated the first claims of Mosaic’s
`’616 patent and Ridge’s ’808 patent as representative, and
`neither party argues this was error. Claim 1 of the ’616
`patent recites (with emphasis added):
`[a] holder for securely and simultaneously retain-
`ing flexible articles and rigid cards, said holder
`comprising:
`a) a nominally rectangular and nominally flat pla-
`nar first panel having interior and exterior sur-
`faces, a lip extending nominally around three
`edges of said first panel along said interior sur-
`faces, said lip being at right angles to the plane
`of said first panel;
`b) a nominally rectangular and nominally flat pla-
`nar second panel having interior and exterior
`surfaces, a lip extending nominally around
`three edges of said second panel along said in-
`terior surface and configured to form a mirror
`image of said first panel, said second panel be-
`ing adapted to be attached to said first panel
`along said three edges to form an open-ended
`enclosure of sufficient size to store said rigid
`cards within said interior of said enclosure, said
`enclosure being nominally rectangular with two
`longitudinal sides, an open end, and a closed
`end;
`c) a resilient article retaining member having an
`attached end and a free end extending from one
`end of said enclosure and over the exterior of
`said first panel, said free end of said article re-
`taining member being biased toward said exte-
`rior surface of said first panel;
` wherein said first panel and said second panel
`each has lips of varying thickness.
`Claim 1 of the ’808 patent recites:
`
`

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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`[a] compact wallet, comprising:
`at least two rigid plates interposed to sandwich
`card-like contents there between, each rigid plate
`having a longitudinal extent;
`at least one encircling elastic band interposed with
`the at least two rigid plates along longitudinal ex-
`tents thereof to bias them inwardly and securely
`hold the card-like contents while providing elastic
`volume there between for adding or removing con-
`tents;
`a channeling means configured to minimize the
`profile of the wallet and hold position of the at least
`one encircling elastic band with respect to each
`rigid plate while allowing freedom for the dynamic
`extension and contraction of the band over the en-
`tire running length thereof; and
`an auxiliary feature removably attached to at least
`one of the at least two rigid plates, the auxiliary
`feature having a tang insertable into a recess
`formed inside the at least two rigid plates, the tang
`having a hook, the hook extending at an angle to
`the tang, the hook engaging an undercut of the re-
`cess to prevent inadvertent dislodgement of the
`auxiliary feature from the recess,
`whereby, card-like contents may be carried with
`minimal silhouette on or with a person while allow-
`ing expandable capacity and ready access to indi-
`vidual contents from between the at least two rigid
`plates.
`The District Court construed two terms of the ’616 pa-
`tent that are contested in this appeal. First, it construed
`“lip” as a “connector made of extrudable or injectable plas-
`tic material that defines the outer dimension of enclosure”
`and explained that the first and second panels must have
`“separate and independent” lips. J.A. 21-22. Second, it
`
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`Case: 22-1001 Document: 48 Page: 6 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`construed “of varying thickness” to mean “having a thick-
`ness, defining the outer dimensions of the holder, that
`causes the outer dimensions of the holder to be thicker in
`some parts and thinner in others.” J.A. 25. Following
`claim construction, Mosaic conceded that it could not pre-
`vail on its ’616 patent infringement claims and stipulated
`with Ridge to a dismissal subject to the right to appeal the
`Court’s constructions.
`Subsequently, both parties moved for summary judg-
`ment on other issues, and the District Court found that (1)
`certain claims of the ’808 patent4 were invalid as antici-
`pated by Mosaic’s SMCII, (2) Mosaic’s motion for summary
`judgment with respect to inequitable conduct making
`Ridge’s ’808 patent unenforceable was moot, and (3) Mo-
`saic’s putative trade dress was invalid as functional, lack-
`ing in secondary meaning, and abandoned.
`Mosaic filed a motion for reconsideration, asking the
`Court to address inequitable conduct despite its mootness,
`on the grounds that the “defense is still relevant to [Mo-
`saic’s] request for attorney’s fees under 35 U.S.C. § 285”
`and that “as a practical matter of judicial economy” it
`
`
`4 The District Court’s order broadly declares it is
`granting Mosaic’s motion “that the ’808 patent is invalid
`under §102(a),” without identifying which claims are being
`found invalid. J.A. 728. The record before us is unclear as
`to which claims Ridge asserted against Mosaic. See J.A.
`835 (referencing only claim 1); J.A. 838 (generally alleging
`“Mosaic Brands infringes Ridge’s ’808 patent”). Mosaic ap-
`pears to cite only claim 1 in its counterclaim for invalidity,
`but its brief supporting summary judgment argues for in-
`validity of claims 1-3, 6, 9, and 13-18. Because we remand
`for further proceedings, we leave it to the District Court to
`clarify which claims are being adjudicated with respect to
`infringement and validity.
`
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`Case: 22-1001 Document: 48 Page: 7 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`7
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`would be helpful for the parties to know the Court’s views
`before any appeal. J.A. 9 (internal quotation marks omit-
`ted). The District Court agreed that “addressing Plaintiff’s
`inequitable conduct defense now would help clarify certain
`issues with Plaintiff’s defense,” and it went on to assess the
`merits of Mosaic’s arguments, as it had discretion to do.5
`J.A. 11. The Court then explained that Mosaic had met
`part, but only part, of its burden of proving inequitable con-
`duct and suggested there would be later proceedings at
`which Mosaic might have another opportunity to present
`additional evidence. Based on this reasoning, the Court
`granted Mosaic’s request for reconsideration but denied its
`motion for summary judgment on inequitable conduct.
`The Court entered final judgment of no liability for
`both Mosaic and Ridge. Both parties timely appealed.
`II
`We have jurisdiction under 28 U.S.C. § 1295(a)(1).
`In the course of this case, we questioned the parties as
`to whether, given the status of the inequitable conduct de-
`fense, there is a reviewable final judgment. See Dkt. No.
`45. In the same order in which the District Court granted
`summary judgment of invalidity with respect to Ridge’s
`’808 patent, the Court denied as moot Mosaic’s motion for
`summary judgment that the patent is also unenforceable
`
`
`5 While it was well within the District Court’s discre-
`tion to consider inequitable conduct in connection with Mo-
`saic’s motion to recover attorney’s fees, the District Court
`likewise had discretion to refrain from addressing any is-
`sues solely related to § 285 until after completion of any
`appeals from a final judgment on other issues. See, e.g.,
`Nova Chems. Corp. (Canada) v. Dow Chem. Co., 856 F.3d
`1012, 1015-16 (Fed. Cir. 2017); iLOR, LLC v. Google, Inc.,
`631 F.3d 1372, 1375 (Fed. Cir. 2011).
`
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`due to inequitable conduct. The District Court was correct:
`once it had found Ridge’s patent claims invalid as antici-
`pated, Mosaic could not have been found liable for infring-
`ing invalid claims, so Mosaic’s defense that those same
`claims were unenforceable due to inequitable conduct be-
`came a moot issue. See Commil USA, LLC v. Cisco Sys.,
`Inc., 575 U.S. 632, 644 (2015) (“[I]f . . . an act that would
`have been an infringement . . . pertains to a patent that is
`shown to be invalid, there is no patent to be infringed.”);
`Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1383
`(Fed. Cir. 2007). But see Zenith Elecs. Corp. v. PDI
`Commc’n Sys., Inc., 522 F.3d 1348, 1366 & n.11 (Fed. Cir.
`2008) (explaining that finding of invalidity of certain
`claims does not moot counterclaim for inequitable conduct
`directed to entire patent).
`
`That the District Court went on to analyze the merits
`of inequitable conduct in connection with Mosaic’s motion
`for reconsideration also does not deprive us of jurisdiction.
`On reconsideration, the District Court concluded that Mo-
`saic’s SMCII was material prior art that Ridge should have
`disclosed to the PTO during prosecution of Ridge’s ’808 pa-
`tent, but also that Mosaic had not (yet, at least) proven that
`Ridge intended to deceive the PTO. Because inequitable
`conduct was in the case only as an affirmative defense, the
`denial of summary judgment – whether due to mootness or
`an insufficient showing on the merits – merged with the
`final judgment entered by the District Court, and we have
`jurisdiction. See Hendler v. United States, 952 F.2d 1364,
`1368 (Fed. Cir. 1991); see also W.L. Gore v. Int’l Med. Pros-
`thetics Rsch. Assocs., Inc., 975 F.2d 858, 863 (Fed. Cir.
`1992) (stating “undecided defense does not render the judg-
`ment nonfinal”).
`
`III
`A
`With respect to Mosaic’s assertion that Ridge infringes
`its ’616 patent, Mosaic appeals the District Court’s
`
`

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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`construction of two terms: “lip” and “of varying thickness.”
`“We review a district court’s claim construction de novo”
`and review any “underlying factual determinations for
`clear error.” Genuine Enabling Tech. LLC v. Nintendo Co.,
`29 F.4th 1365, 1372 (Fed. Cir. 2022).
`1
`The District Court construed the claim term “lip” as a
`“connector made of extrudable or injectable plastic mate-
`rial that defines the outer dimensions of enclosure.” J.A.
`21. Mosaic argues this construction is too narrow as the
`“lip” of the claims need not be made of “extruded plastic”
`but may, instead, be manufactured with any “softer, flexi-
`ble material,” including silicone or elastic. See Mosaic’s
`Principal Br. 32. Mosaic’s proposed construction is “con-
`nector defining outer dimension of enclosure.”6 Id. Ridge
`defends the District Court’s construction.
`We agree with the District Court. The written descrip-
`tion of the ’616 patent expressly states that “the device of
`the present invention is constructed of extrudable plastic
`materials.” J.A. 1444 (’616 patent at 1:22-23); see also J.A.
`1438 (’616 patent Abstract) (“The product is constructed of
`three extrudable plastic material parts . . . .”). The patent
`also emphasizes the benefits of using extrudable plastic
`and describes them as benefits from the invention as a
`
`
`6 Mosaic also suggests that the first and second pan-
`els do not need to have separate and independent lips. To
`the extent Mosaic is challenging the District Court’s con-
`struction of “said first and second panel having lips” as re-
`quiring “separate and independent lips,” the patent is
`clear: both the first and second panels must “each” have
`lips. J.A. 1446 (’616 patent at 5:33-34); see also J.A. 1446
`(’616 patent at 5:22) (requiring panels to be “mirror im-
`age[s]” of one another).
`
`

`

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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`whole. See J.A. 1444-45 (’616 patent at 1:22-25, 3:17-22,
`4:13-15). While claims are not always limited to what a
`patent describes as “the present invention,” see Cont’l Cirs.
`LLC v. Intel Corp., 915 F.3d 788, 798-99 (Fed. Cir. 2019)
`(finding no disclaimer where use of “the present invention”
`does not describe invention as a whole), here, in context, a
`person of ordinary skill in the art would have understood
`the “present invention” statements as describing the
`claimed invention as a whole, see Verizon Servs. Corp. v.
`Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir.
`2007) (“When a patent . . . describes the features of the ‘pre-
`sent invention’ as a whole, this description functions as a
`disclaimer that limits the scope of the invention.”) (empha-
`sis added). Contrary to Mosaic’s suggestions, these state-
`ments are not limited to a best mode or particular
`embodiments. Instead, the ’616 patent uses “the present
`invention” to describe the invention as a whole, thereby
`disclaiming inventions constructed out of materials other
`than extrudable plastic.
`Thus, the District Court did not err in construing “lip”
`as being limited to extrudable plastic materials.
`2
`The District Court construed “of varying thickness” as
`“having a thickness, defining the outer dimensions of the
`holder, that causes the outer dimensions of the holder to be
`thicker in some parts and thinner in others.” J.A. 24-25.
`Mosaic contends that the proper construction is plain and
`ordinary meaning. Ridge responds that the District
`Court’s construction is correct and also that it is the term’s
`plain and ordinary meaning.
`Mosaic insists “it is clear that ‘of varying thickness’ is
`used in its plain and ordinary meaning throughout the pa-
`tent.” Mosaic’s Principal Br. 34. But it offers no intrinsic
`evidence for this position, only extrinsic dictionary defini-
`tions and attorney argument. Mosaic also fails to explain
`
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`what is incorrect about the District Court’s construction or
`how it deviates from the plain and ordinary meaning.7
`The District Court’s construction is correct, and we af-
`firm it.
`
`B
`The District Court granted Mosaic’s motion for sum-
`mary judgment that the challenged claims of Ridge’s ’808
`patent are invalid as anticipated by Mosaic’s SMCII. Be-
`cause the record reveals a genuine dispute of material fact
`as to whether the SMCII is prior art, we reverse.
`We review grants of summary judgment under the law
`of the regional circuit in which the District Court sits, here
`the Ninth Circuit. See Columbia Sportswear N. Am., Inc.
`v. Seirus Innovative Accessories, Inc., 942 F.3d 1119, 1129
`(Fed. Cir. 2019). The Ninth Circuit reviews summary judg-
`ment rulings de novo. See City of Pomona v. SQM N. Am.
`Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). We must draw
`all reasonable inferences in the non-moving party’s favor.
`See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th
`Cir. 2010). Therefore, “a moving party seeking to invali-
`date a patent at summary judgment must submit such
`clear and convincing evidence of facts underlying invalidity
`
`
`In its reply brief, Mosaic argues the District Court
`7
`read additional limitations into the term when it held that
`the lips “defin[e] the outer dimensions of the holder” and
`“caus[e] the outer dimensions of the holder to be thicker in
`some parts and thinner in others.” Mosaic’s Resp. & Reply
`Br. 18. Mosaic did not clearly argue these portions of the
`District Court’s claim construction were incorrect in its
`opening brief. “Arguments raised for the first time in a re-
`ply brief are not properly before this court.” United States
`v. Ford Motor Co., 463 F.3d 1267, 1276 (Fed. Cir. 2006).
`Hence, we have not considered this untimely contention.
`
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`that no reasonable jury could find otherwise.” SRAM Corp.
`v. AD-II Eng’g, Inc., 465 F.3d 1351, 1357 (Fed. Cir. 2006).
`Whether the SMCII is prior art to Ridge’s ’808 patent
`depends on when units of the SMCII, which indisputably
`contained all of the elements of Ridge’s claims,8 were first
`sold. Mosaic, based in large part on the testimony of the
`SMCII’s inventor, Scott Kaminski, contends the SMCII
`was first sold in 2011, more than a year before Ridge filed
`its application that became the ’808 patent. The District
`Court agreed with Mosaic. Ridge argues that the District
`Court erred in two respects. First, in Ridge’s view, Kamin-
`ski’s testimony lacked sufficient corroboration as a matter
`of law. Second, Ridge asserts there is a genuine dispute as
`to the material fact of Kaminski’s credibility. While we re-
`ject Ridge’s first contention, we agree with the second.
`We first consider whether Mosaic produced sufficient
`evidence of corroboration. When a party claims that its
`own invention predates, and thereby anticipates, a patent
`asserted against it, the oral testimony of the inventor of the
`purported prior art must be corroborated.9 See TransWeb,
`
`
`8 On appeal, Ridge insists there is a genuine dispute
`as to whether the SMCII practices each limitation of the
`’808 patent. Ridge forfeited its arguments on this point by
`not raising them in District Court, and we do not address
`them here. See Cal. Ridge Wind Energy LLC v. United
`States, 959 F.3d 1345, 1351 (Fed. Cir. 2020) (“We may deem
`an argument forfeited when a party raises it for the first
`time on appeal.”).
`9 Our cases on corroboration of an inventor’s testi-
`mony have arisen in various contexts and procedural pos-
`tures. We apply the same standard to determine if
`inventor testimony is sufficiently corroborated for all § 102
`issues. See, e.g., Finnigan Corp. v. Int’l Trade Comm’n, 180
`
`
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`LLC v. 3M Innovative Props. Co., 812 F.3d 1295, 1301 (Fed.
`Cir. 2016); Sandt Tech., Ltd. v. Resco Metal & Plastics
`Corp., 264 F.3d 1344, 1350 (Fed. Cir. 2001). This is to pro-
`tect against fraud and “provide[] an additional safeguard
`against courts being deceived by inventors who may be
`tempted to mischaracterize the events of the past.” Medi-
`chem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1170 (Fed. Cir.
`2006). Possible corroborating evidence, from most to least
`probative, includes documentary and physical evidence
`created at the time of conception or reduction to practice,
`circumstantial documentary evidence about the inventive
`process, and oral testimony by someone other than the in-
`ventor. See Sandt, 264 F.3d at 1350-51.
`
`“When determining whether an alleged inventor’s tes-
`timony is sufficiently corroborated, we apply a rule-of-rea-
`son analysis and consider all pertinent evidence.” Martek
`Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1374
`(Fed. Cir. 2009). This rule-of-reason analysis does not re-
`quire every aspect of an inventor’s testimony to be explic-
`itly corroborated with a source independent of the inventor.
`See TransWeb, 812 F.3d at 1301-02; see also Medichem, 437
`F.3d at 1171 (“[T]he law does not impose an impossible
`standard of independence on corroborative evidence by re-
`quiring that every point of a reduction to practice be cor-
`roborated by evidence having a source totally independent
`of the inventor.”) (internal alterations, quotation marks,
`and citation omitted).
`
`
`F.3d 1354, 1367 (Fed. Cir. 1999) (“While this court has in
`the past applied the requirement of corroboration more of-
`ten in the context of priority disputes under 35 U.S.C.
`§ 102(g), corroboration has been required to prove invalid-
`ity under other subsections of § 102 as well.”) (internal foot-
`note omitted).
`
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`“In applying the rule of reason test, all pertinent evi-
`dence is examined in order to determine whether the in-
`ventor’s story is credible.” Sandt, 264 F.3d at 1350
`(internal quotation marks and citation omitted). “[T]he
`credibility (and therefore corroborative value) of an inven-
`tor’s [documentary evidence] may vary” and may well,
`therefore, be subject to dispute. Medichem, 437 F.3d at
`1170. Whether testimony is sufficiently corroborated is ul-
`timately a question of fact. See TransWeb, 812 F.3d at
`1302; see also Lazare Kaplan Int’l v. Photoscribe Techs.,
`Inc., 628 F.3d 1359, (Fed. Cir. 2010) (“Under this [rule-of-
`reason] analysis, this court evaluates all of the pertinent
`evidence so that a sound determination of the credibility of
`the [witness’s] story may be reached.”) (bracketed altera-
`tions in original; internal quotation marks and citation
`omitted); Adenta GmbH v. Orthoarm, Inc., 501 F.3d 1364,
`1371-72 (Fed. Cir. 2007) (“Assessing the sufficiency of evi-
`dence which corroborates a witness’s testimony concerning
`invalidating activities has been analyzed under the ‘rule of
`reason’ test, and it is a jury question.”). Hence, “each cor-
`roboration case must be decided on its own facts with a
`view to deciding whether the evidence as a whole is persua-
`sive.” Cooper v. Goldfarb, 154 F.3d 1321, 1331 (Fed. Cir.
`1998).
` Here, the SMCII’s inventor, Kaminski, testified that
`the SMCII was first sold in 2011. In support, he attached
`to his declaration (1) design plans for the SMCII from Oc-
`tober 19, 2010, and (2) invoices seemingly showing that the
`SMCII was sold at a trade show in 2011. If a reasonable
`factfinder credits Kaminski’s testimony and finds his doc-
`uments to be authentic, which she could, this collection of
`evidence would provide a sufficient basis from which the
`factfinder could find that the SMCII was on sale by 2011.
`See Sandt, 264 F.3d at 1351-52. As the District Court ac-
`curately explained, the design drawings in our record are
`akin to the abandoned patent application and design draw-
`ings we had before us in Sandt; and the invoices here are
`
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`Case: 22-1001 Document: 48 Page: 15 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`15
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`comparable to the invoices in that case as well. Indeed, the
`documents attached to Kaminski’s declaration could be
`found to fall into what we have described as the “most reli-
`able” form of corroboration: “[d]ocumentary . . . evidence
`that is made contemporaneously with” the events requiring
`corroboration. Id. at 1350-51. Therefore, consistent with
`the District Court’s analysis, “a reasonable fact finder
`could have concluded that clear and convincing evidence
`showed that a public use or sale” of Mosaic’s SCMII oc-
`curred more than a year before Ridge presented its claims
`to the PTO. Adenta, 501 F.3d at 1372.
`While the District Court correctly concluded that the
`evidence was sufficient to satisfy the corroboration require-
`ment, the District Court erred by proceeding to grant sum-
`mary judgment of anticipation. Finding that Mosaic
`presented legally sufficient evidence to corroborate the in-
`ventor’s testimony does not necessarily mean that Mosaic’s
`evidence would also lead every reasonable factfinder – tak-
`ing the evidence in the light most favorable to Ridge, as the
`non-moving party – to find by clear and convincing evi-
`dence that the SMCII does, in fact, predate the ’808 pa-
`tent’s critical date. See Sandt, 264 F.3d at 1352 (affirming
`grant of summary judgment where “[a] reasonable jury
`could only conclude that the drawing shows the second
`stainless steel plate”) (emphasis added). Before the antici-
`pation issue presented in this case can be resolved, a fact-
`finder will have
`to evaluate
`the credibility and
`persuasiveness of the evidence of corroboration and make
`its own judgment as to whether Mosaic has proven, clearly
`and convincingly, that the SMCII is prior art to Ridge’s ’818
`patent. See id. at 1357 (Dyk, J., concurring) (“Even where
`our corroboration requirement is satisfied, in many cases
`summary judgment cannot be granted unless the prior in-
`ventor’s testimony is considered to be credible. Even where
`there are no affidavits from the party opposing judgment
`(the patent holder), it will often be appropriate to deny
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`Case: 22-1001 Document: 48 Page: 16 Filed: 12/20/2022
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`MOSAIC BRANDS, INC. v. RIDGE WALLET LLC
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`summary judgment because the prior inventor’s testimony
`raises issues of credibility that require a trial.”).10
`Here the corroborating documents are only persuasive
`if the factfinder determines Kaminski is credible. Ridge
`has identified specific facts in the record that create doubt
`as to Kaminski’s credibility and, relatedly, as to the au-
`thenticity of the documents Mosaic offered as corroboration
`of his testimony. See Ridge’s Principal & Resp. Br. 30 (ar-
`guing that documents Kaminski provides “readily [could]
`have been back-dated”); D. Ct. Dkt. No. 115 at 4 (“Kamin-
`ski[’]s[] credibility is an issue of material fact.”); id. at 4–5
`(“Mr. Kaminski’s credibility and the dearth of evidence re-
`mains a disputed issue of material fact.”); see also J.A. 7
`(District Court noting Ridge’s challenge to authenticity of
`Kaminski documents); J.A. 724 (“Defendant argues that
`Mr. Kaminski and his supporting documents lack credibil-
`ity . . . .”). In particular, Ridge points to the lack of any
`contemporaneous images of the SMCII from 2011, the lack
`of documented sales from 2012 to 2019, Kaminski’s motive
`to mispresent his invention date, the lack of any metadata
`confirming the documents’ authenticity, and other alleged
`inconsistencies in Kaminski’s representations. The ab-
`sence of any third-party corroborating evidence further
`supports our conclusion that there is a genuine dispute as
`to the material fact of whether the SCMII is prior art.
`Under these circumstances, Ridge is entitled to an op-
`portunity to cross-examine Kaminski, in order to allow the
`
`
`10 In Sandt, the party opposing summary judgment of
`anticipation waived any challenge to the credibility of the
`witness supporting the motion. See 264 F.3d at 1353 n.2.
`Here, by contrast, Ridge has consistently raised issues as
`to Kaminski’s credibility and the authenticity of his docu-
`ments.
`
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`factfinder to evaluate his credibility and the related issue
`of the authenticity of the corroborating documentary evi-
`dence. If the factfinder were to find that Kaminski is not
`credible, and that the documents on which Mosaic relies
`are not authentic, the record would then lack the requisite
`corroborating evidence and Mosaic would be unable to
`meet its clear and convincing burden. See TypeRight Key-
`board Corp. v. Microsoft Corp., 374 F.3d 1151, 1158 (Fed.
`Cir. 2004) (“[S]ummary judgment is not appropriate where
`the opposing party offers specific facts that call into ques-
`tion the credibility of the movant[’]s witnesses.”).
`The District Court appears to have based its summary
`judgment decision, at least in part, on its belief that Ridge
`produced no affirmative evidence challenging Kaminski’s
`testimony. This was not consistent with our precedent,
`which holds that affirmative evidence is not always neces-
`sary in order to create a genuine dispute. See Zenith, 522
`F.3d at 1363 (“A non-movant need not always provide affi-
`davits or other evidence to defeat a summary judgment mo-
`tion. If, for example, the movant bears the burden and its
`motion fails to satisfy that burden, the non-movant is not
`required to come forward with opposing evidence.”) (inter-
`nal quotation marks and citation omitted); Saab Cars USA,
`Inc. v. United States, 434 F.3d 1359, 1368 (Fed. Cir. 2006)
`(same); see also Cross v. United States, 336 F.2d 431 (2d
`Cir. 1964) (reversing summary judgment, notwithstanding
`non-movant’s failure to present affirmative evidence, be-
`cause “disputed questions of fact turn[ed] exclusively on
`the credibility of movants’ witnesses”); Fed. R. Civ. P. 56
`Notes of Advisory Committee on Rules to 1963 Amend.
`(“Where an issue as to a mat