NOTE: This disposition is nonprecedential.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 represented 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: 1 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 determining 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 customizable mattress support system that includes a frame 

and modular legs. The modular legs come in pieces of different 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 “substantially 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 bottom end having a substantially horizontal bottom 

surface, the outer surface extending beyond the top 

surface and having a top edge such that the top surface is recessed relative to the top edge, body portion 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 response. 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 denied that motion, finding that it still had jurisdiction over 

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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 adequate written description support. Ascion appeals. Ashley

has notified this court that Ashley and Ascion have reached 

a settlement agreement. Pursuant to that agreement, Ashley 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 Circuit 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 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A patent’s written description is sufficient if “the disclosure 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,” including “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 

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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 inappropriate 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 patent’s disclosure “clearly allows persons of ordinary skill in 

the art to recognize that the inventor invented” a leg member 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 specification, 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 devoted to the leg assembly.” J.A. 10; see ’833 patent, 57:25–

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ASCION, LLC v. ASHLEY FURNITURE INDUSTRIES, INC. 5

37. “And the bottoms cannot be seen” in the figures depicting the leg assemblies. J.A. 10. The district court concluded 

that “[t]he specification simply does not provide any information about the configuration of the bottom of the leg assembly 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 surfaces [of the leg assemblies] and understood that the joined 

bottom surfaces were of a particular ‘substantially horizontal’ 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 nonmoving 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 mechanical 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 reasonable factfinder could conceivably find that a skilled artisan 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 opinion.

VACATED AND REMANDED

COSTS

No costs.

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