United States Court of Appeals for the Federal Circuit 

2009-1395 

HEATHER A. DAVIS, 

Plaintiff-Appellant, 

v. 

BROUSE MCDOWELL, L.P.A. 

and DANIEL A. THOMSON, 

Defendants-Appellees. 

 Steven D. Bell, Steven D. Bell Co., L.P.A., of Brecksville, Ohio, argued for 

plaintiff-appellant. Of counsel on the brief were Jeffrey R. Sadlowski, Jeffrey R. 

Sadlowski, LLC, of Brecksville, Ohio, and Himanshu S. Amin, Himanashu S. Amin, LLC, 

of Cleveland, Ohio. 

 James A. King, Porter, Wright, Morris & Arthur LLP, of Columbus, Ohio, argued 

for defendants-appellees. With him on the brief was Bryan R. Faller. 

Appealed from: United States District Court for the Northern District of Ohio 

Judge Sara Lioi 
United States Court of Appeals for the Federal Circuit 

 

2009-1395 

HEATHER A. DAVIS, 

Plaintiff-Appellant, 

v. 

BROUSE MCDOWELL, L.P.A. 

and DANIEL A. THOMSON, 

Defendants-Appellees. 

Appeal from the United States District Court for the Northern District of Ohio in 

case no. 5:08-CV-1356, Judge Sara Lioi. 

 ___________________________ 

 DECIDED: March 2, 2010 

 ___________________________ 

Before NEWMAN, BRYSON, and MOORE, Circuit Judges. 

 

MOORE, Circuit Judge. 

Heather A. Davis appeals from a decision of the United States District Court for 

the Northern District of Ohio granting summary judgment in favor of Daniel A. Thomson 

and Brouse McDowell, L.P.A. (collectively, Defendants). Because the district court 

correctly determined that Ms. Davis failed to introduce evidence sufficient to establish a 

genuine issue of material fact as to an essential element of her case, we affirm. 

I. BACKGROUND

 Ms. Davis is a solo inventor who developed the website, search engine, and 

business known as The IP-Exchange. Ms. Davis describes The IP-Exchange as a 

social networking platform targeted at “intellectual property professionals and non-
professionals alike.” In 2003, Ms. Davis contacted Mr. Thomson, an attorney who was 

then employed by the Ohio-based law firm Brouse McDowell, L.P.A. Ms. Davis 

requested general information about patent protection and told Mr. Thomson that she 

was particularly interested in obtaining international patent coverage. 

Mr. Thomson responded by sending Ms. Davis a letter explaining various 

aspects of the Patent Cooperation Treaty (PCT), which provides a unified procedure for 

filing a single patent application in multiple countries. Mr. Thomson’s letter discussed 

the advantages of filing patent applications under the PCT and the deadlines and costs 

associated with PCT applications. The letter did not mention the “absolute novelty” rule 

that applies in certain countries to bar an inventor from obtaining a patent if she has 

publicly disclosed her invention prior to filing an application. Ms. Davis went live with 

her IP-Exchange website in 2005. 

On January 20, 2006, Ms. Davis filed two provisional patent applications with the 

United States Patent and Trademark Office (PTO). These provisional applications 

related to The IP-Exchange website and search engine, respectively. Under 35 U.S.C. 

§ 119(e), Ms. Davis was required to file a U.S. non-provisional (or utility) patent 

application within one year of filing the corresponding provisional application if she 

wanted to retain the January 20, 2006 priority date. Similarly, Ms. Davis had one year 

from the filing date of the provisional application to file any PCT applications. See Paris 

Convention for the Protection of Industrial Property art. 4(A), March 20, 1883, 21 U.S.T. 

1583. This one-year limit set the filing deadline for Ms. Davis’s utility and PCT 

applications as Monday, January 22, 2007. 

2009-1395 2
On Wednesday, January 17, 2007—five days before the filing deadline for the 

utility and PCT applications—Ms. Davis again contacted Mr. Thomson. She told him 

about the provisional applications relating to The IP-Exchange and the upcoming 

deadline for filing corresponding utility applications, and she asked if he could prepare 

and file U.S. utility and PCT applications on or before the following Monday, January 22. 

Mr. Thomson agreed to prepare and file the applications by the deadline. However, he 

told Ms. Davis that he was leaving the following day for vacation and would not return 

until Monday. He asked Ms. Davis to provide him with all necessary files before he left. 

On Thursday, January 18, Ms. Davis sent Mr. Thomson an email with an 

attachment containing fourteen pages of single-spaced claims that she believed could 

be used for her inventions. Ms. Davis told Mr. Thomson’s assistant that she had an 

additional 275 pages of material relating to the inventions that she wanted to provide to 

Mr. Thomson. Due to technical difficulties, however, Ms. Davis was unable to provide 

Mr. Thomson’s assistant with these materials until the day after he left. 

Mr. Thomson returned from his vacation as scheduled, on Monday, January 22. 

Defendants concede that no other Brouse McDowell attorney worked on Ms. Davis’s 

applications during his absence. Mr. Thomson copied content from Ms. Davis’s 

provisional applications to create three corresponding U.S. utility patent applications 

and filed the utility applications by the end of the day. Due to the looming deadline, Mr. 

Thomson planned to get the applications on file and “go back and clean [them] up” later. 

J.A. 1394 (Thomson Dep. 119:23-24, July 1, 2008). He did not file any PCT 

applications on January 22. Ms. Davis alleges that the U.S. applications prepared and 

2009-1395 3
filed by Mr. Thomson were deficient in various respects and that these deficiencies 

ultimately precluded her from securing patents on her inventions. 

That evening, Ms. Davis contacted Mr. Thomson via telephone and email to 

verify the status of the PCT applications. Mr. Thomson responded, in an email sent at 

10:47 p.m., that he had not filed any PCT applications. He explained that “I do not think 

it is worth spending the money, since you will not be able to obtain patent protection in 

Europe.” J.A. 1347. After further discussion with Ms. Davis the next day, Mr. Thomson 

agreed to prepare the requested PCT applications. He filed the PCT applications on 

January 25, 2007. 

The relationship between Ms. Davis and Mr. Thomson continued to deteriorate, 

and in June 2007 Mr. Thomson withdrew his representation of Ms. Davis before the 

PTO. Ultimately, Ms. Davis’s patent applications went abandoned. Ms. Davis asserts 

that because her inventions lacked patent protection her investors withdrew their 

funding, leaving her unable to operate The IP-Exchange as a business. 

In January 2008, Ms. Davis sued Defendants in the Court of Common Pleas for 

Summit County, Ohio. The originally filed complaint alleged that Defendants committed 

malpractice by failing to timely file three PCT applications on Ms. Davis’s inventions. 

Ms. Davis amended her complaint in May 2008 to allege that Defendants committed 

malpractice by failing to file the three PCT applications as well as by “other omissions.” 

In June 2008, Defendants removed the action to federal court. Defendants 

explained in their Notice of Removal that Ms. Davis had testified at deposition that the 

“other omissions” recited by the complaint included Mr. Thomson’s alleged negligence 

in preparing and filing the U.S. applications. Defendants asserted that adjudicating Ms. 

2009-1395 4
Davis’s malpractice claims would necessarily involve a resolution of the patentability of 

her inventions. Therefore, according to Defendants, Ms. Davis’s claims raised a 

substantial question of federal patent law over which the district court had exclusive 

jurisdiction pursuant to 28 U.S.C. § 1338(a). 

The parties engaged in discovery, exchanged expert reports, and deposed each 

others’ experts. Defendants then filed a motion for summary judgment seeking 

dismissal of Ms. Davis’s claims, and Ms. Davis filed a motion for partial summary 

judgment on Defendants’ affirmative defenses. The court granted Defendants’ motion 

in its entirety, dismissed Ms. Davis’s motion as moot, and entered judgment in favor of 

Defendants. Ms. Davis appeals. 

II. DISCUSSION

A. 

We must first determine whether we have jurisdiction over this appeal. Pursuant 

to 28 U.S.C. § 1295(a)(1), we have exclusive jurisdiction over an appeal from a final 

district court decision if the court’s jurisdiction was based at least in part on 28 U.S.C. 

§ 1338. Section 1338(a) provides that federal district courts have exclusive jurisdiction 

over actions “arising under any Act of Congress relating to patents.” Here, the district 

court determined that it had jurisdiction over Ms. Davis’s malpractice claim pursuant to 

28 U.S.C. § 1338(a). We review the court’s jurisdictional determination without 

deference. Air Measurement Techs., Inc. v. Akin Gump Strauss Hauer & Feld, L.L.P., 

504 F.3d 1262, 1267 (Fed. Cir. 2007). 

The Supreme Court set forth the test for determining whether a district court has 

jurisdiction pursuant to 28 U.S.C. § 1338(a) in Christianson v. Colt Indus. Operating 

Corp., 486 U.S. 800 (1988): jurisdiction extends to those cases “in which a well-pleaded 

2009-1395 5
complaint establishes either that federal patent law creates the cause of action or that 

the plaintiff’s right to relief necessarily depends on resolution of a substantial question of 

federal patent law, in that patent law is a necessary element of one of the well-pleaded 

claims.” Id. at 808-09. If the well-pleaded complaint presents multiple theories 

supporting a claim, that claim “may not form the basis for § 1338(a) jurisdiction unless 

patent law is essential to each of those theories.” Id. at 810. 

Ms. Davis’s cause of action for legal malpractice arises under Ohio state law. 

Therefore, we must determine whether patent law is a “necessary element” of a claim 

presented in her complaint. Id. at 809. To establish a cause of action for legal 

malpractice based on negligent representation in Ohio, a plaintiff must show: “(1) that 

the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that 

duty or obligation and that the attorney failed to conform to the standard required by 

law, and (3) that there is a causal connection between the conduct complained of and 

the resulting damage or loss.” Vahila v. Hall, 674 N.E.2d 1164, 1169 (Ohio 1997). Ms. 

Davis’s complaint alleges that she had an attorney-client relationship with Defendants 

and that Defendants breached their duty to her by failing to timely file the PCT 

applications and by “other omissions.” Ms. Davis testified at deposition that these “other 

omissions” related largely to Mr. Thomson’s alleged negligence in preparing and filing 

the U.S. applications. 

Defendants argue that the resolution of Ms. Davis’s allegations relating to the 

U.S. patent applications will necessarily involve substantive issues of U.S. patent law 

and assert that § 1338(a) jurisdiction exists on this basis. Ms. Davis responds that her 

allegations relating to the U.S. applications comprise an alternative theory supporting a 

2009-1395 6
single claim for legal malpractice. It is undisputed that Ms. Davis’s allegations relating 

to the PCT applications do not raise any issue of U.S. patent law. Therefore, if Ms. 

Davis’s complaint merely presents alternative theories, the district court did not have 

jurisdiction over this case. See Christianson, 486 U.S. at 810 (“a claim supported by 

alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction 

unless patent law is essential to each of those theories”). 

We agree with Defendants that Ms. Davis’s complaint presents multiple claims 

for legal malpractice. A “claim” is broadly defined as the “aggregate of operative facts 

giving rise to a right enforceable by a court.” Black’s Law Dictionary 264 (8th ed. 2004). 

Ms. Davis’s allegations of attorney malpractice arise out of different sets of operative 

facts. On the one hand, she alleges that Mr. Thomson committed malpractice simply by 

failing to file the PCT applications on or before January 22, 2009. Additionally, 

however, she alleges that Mr. Thomson committed malpractice by performing various 

acts of negligence in connection with the preparation and filing of the U.S. 

applications—for example, she asserts that Mr. Thomson drafted inadequate claims; 

failed to include information sufficient to comply with the requirements of 35 U.S.C. 

§ 112, ¶ 1; and failed to apply any of his own legal expertise to synthesize the 

descriptive materials she provided into a cohesive specification. Therefore, Ms. Davis’s 

complaint presents at least two distinct claims: one relating to Mr. Thomson’s 

preparation and filing of the U.S. applications and one relating to his failure to timely file 

the PCT applications. 

Defendants argue that patent law is a necessary element of Ms. Davis’s 

malpractice claim relating to the U.S. applications. Specifically, Defendants assert—

2009-1395 7
and the district court agreed—that Ms. Davis’s claim should be subject to Ohio’s “casewithin-a-case” doctrine. This doctrine applies in certain malpractice cases to require the 

plaintiff to prove that she would have been successful in the underlying matter but for 

the alleged malpractice. See Vahila, 674 N.E.2d at 1168-69. If the case-within-a-case 

doctrine applies to Ms. Davis’s claim, she can prevail only by proving that U.S. patents 

would have issued on her applications but for Defendants’ malpractice—i.e., that her 

inventions were patentable under U.S. law. 

Ms. Davis relies on the Ohio Supreme Court’s decision in Vahila to argue that her 

claim is not subject to the case-within-a-case doctrine. In Vahila, the Ohio Supreme 

Court rejected the argument that the causation element of the legal malpractice 

standard should be replaced by a categorical application of the case-within-a-case 

doctrine. Id. at 1168-69. The court recognized that the burden this doctrine imposes on 

malpractice plaintiffs is substantial and often unjust, particularly where the plaintiffs, like 

the appellants in Vahila, “arguably sustained damage or loss regardless of the fact that 

they may be unable to prove that they would have been successful in the underlying 

matter(s) in question.” Id. at 1169. Thus, the court stated that it could not endorse “a 

blanket proposition that requires a plaintiff to prove, in every instance, that he or she 

would have been successful in the underlying matter.” Id. at 1170. The court 

emphasized, however, that the case-within-a-case doctrine remained viable: “the 

requirement of causation often dictates that the merits of the malpractice action depend 

upon the merits of the underlying case. Naturally, a plaintiff in a legal malpractice action 

may be required, depending on the situation, to provide some evidence of the merits of 

the underlying claim.” Id. at 1170-71. 

2009-1395 8
The court confirmed the continuing applicability of the case-within-a-case 

doctrine in Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 893 N.E.2d 

173 (Ohio 2008), holding that the doctrine applies to legal malpractice cases in which 

the plaintiff’s recovery depends upon its success in the underlying action. Id. at 175. In 

Environmental Network, the appellees alleged that their attorneys had coerced them 

into settling the case. As their sole claim for recovery, the appellees argued that they 

would have obtained a better result if the case had been tried to conclusion. Id. at 177. 

The court observed that “unlike the plaintiffs in Vahila, who sustained losses regardless 

of whether their underlying case was meritorious,” the appellees could prove causation 

and damages only if they established that “they would have succeeded in the underlying 

case and that the judgment would have been better than the terms of the settlement.” 

Id. Therefore, “the theory of [the] malpractice case place[d] the merits of the underlying 

litigation directly at issue,” and the case-within-a-case doctrine applied; appellees “had 

the burden of proving by a preponderance of the evidence that but for appellant’s 

conduct, they would have received a more favorable outcome in the underlying matter.” 

Id. at 177-78. 

Ms. Davis’s malpractice claim relating to the U.S. applications is analogous to the 

claim at issue in Environmental Network. Ms. Davis alleges that Mr. Thomson breached 

his duty to her by negligently preparing and filing the U.S. applications. She further 

alleges that Mr. Thomson’s negligence ultimately cost her the opportunity to secure 

patents on her inventions and that her investors withdrew their financial commitments 

as a result of her failure to secure patent protection. Unless Ms. Davis would have 

received patents on her inventions if the applications had been competently drafted—

2009-1395 9
i.e., unless her inventions were patentable—Mr. Thomson’s negligence could not have 

caused her to suffer any damages. As in Environmental Network, therefore, Ms. 

Davis’s theory of recovery “places the merits of the underlying [patent prosecution] 

directly at issue.” Id. The district court correctly determined that the case-within-a-case 

doctrine applies to Ms. Davis’s legal malpractice claim. 

Because the case-within-a-case doctrine applies, Ms. Davis must prove, by a 

preponderance of the evidence, that she would have obtained patents on her inventions 

but for Mr. Thomson’s alleged negligence. Id. at 177-78. The patentability of Ms. 

Davis’s inventions is controlled by U.S. patent law. Therefore, patent law is a necessary 

element of one of the legal malpractice claims presented in Ms. Davis’s complaint, and 

the district court properly exercised jurisdiction pursuant to 28 U.S.C. § 1338(a). 

B. 

Before we reach the merits, we must address Ms. Davis’s evidentiary 

contentions. We review evidentiary rulings that are not unique to our jurisdiction under 

the law of the regional circuit. Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 

265 F.3d 1294, 1308 (Fed. Cir. 2001). The Sixth Circuit reviews a district court’s 

evidentiary rulings for abuse of discretion. See Dickenson v. Cardiac & Thoracic 

Surgery of E. Tenn., P.C., 388 F.3d 976, 980 (6th Cir. 2004). 

Ms. Davis argues that the district court abused its discretion in striking paragraph 

5 of the affidavit of her patent law expert, Mr. O’Shaughnessy, which she filed in support 

of her motion for partial summary judgment. In paragraph 5, Mr. O’Shaughnessy 

opined that “an assessment of the patentability of an invention can be and routinely is 

performed without knowing what claims will eventually be made . . . [or] issue in a 

patent on that invention.” J.A. 955. Mr. O’Shaughnessy also stated that he had 

2009-1395 10
performed “such a patentability analysis” and that he concluded Ms. Davis’s inventions 

were patentable based on this analysis. Id. 

The district court agreed with Defendants that Mr. O’Shaughnessy’s opinion 

regarding the nature of a “patentability assessment” had not appeared in his earlier-filed 

expert report. The court also agreed that the assertions of paragraph 5 conflicted with 

Mr. O’Shaughnessy’s statements at deposition, where he testified that “patentability” 

referred to the question of whether claims were patentable over prior art and that he had 

never performed any patentability analysis. Further, the court observed that the 

opinions and assertions of paragraph 5 were clearly relevant to Defendants’ case: 

Defendants had attacked Mr. O’Shaughnessy’s expert report primarily on the basis that 

he did not perform an adequate patentability assessment and had already deposed Mr. 

O’Shaughnessy on that point. Under the circumstances, the court determined that it 

would be unjust to consider these newly raised opinions and assertions, and struck 

paragraph 5 for that reason. In view of Mr. O’Shaughnessy’s inconsistent deposition 

testimony and his failure to include the patentability opinion of paragraph 5 in his expert 

report, the court did not abuse its discretion in striking paragraph 5. 

C. 

The district court granted summary judgment in favor of Defendants. We review 

a grant of summary judgment de novo, reapplying the same standard as the district 

court. Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1379 (Fed. Cir. 2009). 

“Summary judgment is appropriate when there is no genuine issue as to any material 

fact and the moving party is entitled to judgment as a matter of law." Immunocept, LLC 

v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1286 (Fed. Cir. 2007) (internal citation 

omitted). “Summary judgment must be granted against a party who has not introduced 

2009-1395 11
evidence sufficient to establish the existence of an essential element of that party's 

case, on which the party would bear the burden of proof at trial." Univ. of W. Va., Bd. of 

Trs. v. Van Voorhies, 278 F.3d 1288, 1295 (Fed. Cir. 2002). 

To prevail on a claim for legal malpractice based on negligent representation, the 

plaintiff must establish that the attorney owed a duty to the plaintiff; that the attorney 

breached that duty and failed to conform to the standard required by law; and that “there 

is a causal connection between the conduct complained of and the resulting damage or 

loss.” Vahila, 674 N.E.2d at 1169. As discussed above, the case-within-a-case 

doctrine applies to Ms. Davis’s malpractice claim relating to the U.S. applications. For 

similar reasons, the case-within-a-case doctrine applies to her malpractice claim relating 

to the PCT applications. Therefore, to satisfy the causation prong of the malpractice 

standard Ms. Davis must prove, by a preponderance of the evidence, that she would 

have received patents on her inventions but for Mr. Thomson’s alleged negligence in 

preparing and filing the applications. Environmental Network, 893 N.E.2d at 178 (noting 

“the established rule that a plaintiff must establish by a preponderance of the evidence 

that defendant's actions were the proximate cause of plaintiff's losses”). 

 Ms. Davis’s patent law expert, Mr. O’Shaughnessy, devoted the majority of his 

report to explaining the ways in which the applications Mr. Thomson prepared and filed, 

as well as his legal advice, were deficient. We agree with the district court that Mr. 

O’Shaughnessy’s report provides sufficient evidence to establish a genuine issue of 

material fact as to whether Mr. Thomson breached a duty he owed to Ms. Davis as her 

attorney. Mr. Thomson went on vacation, missed filing dates, and, by his own 

admission, filed an application which he realized contained a poorly drafted specification 

2009-1395 12
and claims which he intended to repair at a later time. This is certainly not standard or 

adequate patent attorney representation, especially if, as Ms. Davis alleges, he did not 

inform her of his intention to proceed this way. 

 However, even if Ms. Davis can establish that Mr. Thomson breached a duty to 

her, she must still also prove causation, i.e., that absent his breach she would have 

obtained a patent. With respect to patentability—the critical issue for causation—Mr. 

O’Shaughnessy opined only that “but for the legal malpractice of Brouse McDowell 

identified throughout this report, Ms. Davis would have been awarded [U.S.] patents on 

her inventions” and that he had seen nothing in Brouse McDowell’s files or in the 

depositions taken in the case that “would have blocked her ability to have secured 

commercially meaningful patents on her inventions.” J.A. at 1207. Mr. 

O’Shaughnessy’s report did not even address the patentability of Ms. Davis’s inventions 

under foreign patent law. The district court observed that Mr. O’Shaughnessy had not 

performed a prior art search or a “patentability analysis,” nor had he identified particular 

claims that could be made for Ms. Davis’s inventions. Therefore, the court found that 

Mr. O’Shaughnessy’s patentability opinion lacked adequate foundation and could not be 

relied upon by Ms. Davis as evidence of patentability. 

We agree with the district court’s conclusion. “We look to regional circuit law for 

the applicable standard controlling the factual foundation necessary to support an 

expert's opinion, which is not a matter peculiar to patent law.” Novartis Corp. v. Ben 

Venue Labs., Inc., 271 F.3d 1043, 1051 (Fed. Cir. 2001). In the Sixth Circuit, 

“[c]onclusory statements unadorned with supporting facts are insufficient to establish a 

factual dispute that will defeat summary judgment.” Alexander v. CareSource, 576 F.3d 

2009-1395 13
551, 560 (6th Cir. 2009). Mr. O’Shaughnessy’s opinion that Ms. Davis’s inventions are 

patentable is precisely this type of conclusory statement. His expert report contains no 

affirmative analysis supporting his opinion on patentability; instead, the opinion is 

followed only by the equally conclusory assertion that Mr. O’Shaughnessy has seen 

nothing to “block” this patentability. An unsupported opinion such as this cannot and 

does not create a genuine issue of material fact as to the patentability of Ms. Davis’s 

inventions. 

 To be clear, however, we reject the suggestion that Ms. Davis would have had to 

identify claims for her inventions or perform a patentability analysis similar to that 

required in an invalidity trial. Ms. Davis’s ultimate burden in this case is to establish the 

likelihood that her inventions would have been held patentable on examination in the 

PTO or any applicable national patent office, in accordance with the criteria of 

patentability applied during examination. At the summary judgment stage, she had only 

to introduce evidence sufficient to establish an issue of material fact as to patentability. 

Ms. Davis could have satisfied this initial burden in any number of ways. For example, 

in this case the PTO had issued rejections with respect to two of Ms. Davis’s three U.S. 

applications prior to the date of Mr. O’Shaughnessy’s expert report. Mr. 

O’Shaughnessy could have reviewed the prior art references cited in the office actions 

and discussed their effect on patentability. The case law is clear, however, that an 

expert’s naked conclusion is insufficient to survive summary judgment. Id. at 560. 

Because that is the only evidence of patentability that Ms. Davis proffered with respect 

to her U.S. applications—and because she proffered no evidence at all with respect to 

2009-1395 14
2009-1395 15

her PCT applications—we agree with the district court that she failed to establish a 

genuine issue of material fact as to the patentability of her inventions. 

 Because Ms. Davis failed to establish a genuine issue of material fact as to the 

patentability of her inventions, she cannot prevail on the causation element of her 

malpractice claim as a matter of law. Therefore, the district court properly granted 

Defendants’ motion for summary judgment and entered judgment in their favor. We 

need not reach the district court’s alternative conclusion that Ms. Davis failed to 

introduce evidence sufficient to raise an issue of material fact as to damages. 

III. CONCLUSION

We conclude that the district court properly exercised jurisdiction over Ms. 

Davis’s malpractice cause of action. We also conclude that the district court did not 

abuse its discretion in striking portions of the supplemental affidavit of Ms. Davis’s 

patent law expert. Finally, we conclude that Ms. Davis failed to introduce evidence 

sufficient to establish a genuine issue of material fact as to the patentability of her 

inventions and that the district court properly granted summary judgment in favor of 

Defendants. For these reasons, the judgment of the district court is 

AFFIRMED. 

COSTS

No costs.