# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2023 Decided June 21, 2024

No. 22

- 7057

A PPRIO
, I NC
.,

A PPELLEE

v.

N EIL Z ACCARI
,

A PPELLANT

Appeal from the United States District Court
for the District of Columbia (No. 1:18

- cv

- 02180)

Gregory W. Keenan , pro hac vice, argued the cause for appellant. On the brief were Belinda D. Jones

, Robert D.
Michaux

, Andrew B. Grimm , and Kirk T. Schroder

.

John R. Hutchins argued the cause for appellee. With him
on the brief were Christopher B. Roth and William Rauchholz

.

Before: W ILKINS and W ALKER
, Circuit Judges , and

R ANDOLPH
, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge W ILKINS

.2

W ILKINS
, Circuit Judge : This case concerns the enforceability of a contract that was digitally “acknowledged” but not explicitly “agreed” to. Between 2015 and 2017, Appellee Apprio, Inc. (“Apprio”), a government contractor in the business of helping clients automate and streamline operations, empl oyed Appellant Neil Zaccari (“Zaccari”) as a Senior Technical Manager responsible, in part, for technology development. Prior to his employment with Apprio, Zaccari

, incidentally

, had developed a regulatory compliance software ( the “Initial Software”). D uring his tenure, Zaccari realized
that his Initial Software might be helpful to Apprio , so he updated the Initial Software to create a new version: the Updated Software. Zaccari then brought the Updated Software
to work and demonstrated it to both his co lleagues and one of Apprio’s clients

. Apparently impressed by the Updated
Software , Apprio asked Zaccari to hand it over. Zaccari obliged.

The next month

, A pprio sent Zaccari a document tit l ed “Proprietary Information and Assignment of Inventions Agreement ” (the “Agreement”) . The Agreement included provisions relevant to copyright assignment of the Updated
Software . Zaccari accessed the Agreement through Apprio’s human resources portal and admits that he both saw the
document and had t he opportunity to read it. Zaccari then closed the document by clic king on the “only option ” he says he saw on the computer screen: a button that read “Acknowledge

. ” J.A. 923

.
Nearly a year later, Apprio fired Zaccari. Following his
termination

, Apprio requested Zaccari furnish all copies of the Updated Software in his possession. Zaccari refused to do so,
and he instead copyright ed the Updated Software and su ed Apprio for breach ing the Agreement when Apprio allegedly
forc ed him to turn over a copy of t he Updated Software to an3

Apprio client

. In response, Apprio filed t his case , countersuing
Zaccari for breach ing the Agreement when he refused to assign his rights in the Updated Software to Apprio (among other attendant actions). T he D istrict C ourt combined the cases,
dismissed Zaccari’s case for failure to state a claim

, and in Apprio’s case, initially granted partial summary judgment for App rio with respect to contractual assignment of rights in the Updated Software and later also granted full summary judgment for Apprio on its breach of contract claim.

Zaccari now appeals, arguing that the Agreement is not an
enforceable contract and , in th e alternative, that the Agreement neither supports the assignment of his rights in the Updated
Software to Apprio nor a finding that he breached the Agreement. We disagree on all fronts

. We hold that Zaccari’s “acknowledgment” of the Agreement create d an enforceable contract that requires Zaccari to assign his rights in the Updated Software to Apprio. Accordingly, Zaccari breached the binding Agreement by failing to assign those rights to Apprio and disclosing the Updated Software’s underlying code to th e U.S. Copyright Office (“Copyright Office”) in order to obtain the copyright

. For these reasons , we affirm the District Court.

I.

A

.

Zaccari was employed at Apprio as a Senior Technical Manager between November 2015 and May 2017. While
Zaccari worked there , Apprio was under contract with the Defense Contract Management Agency (“DCMA”) to help the

agency receive and review contracts more efficiently by developing, testing, and implementing automa tion tools. As relevant here, Zaccari was hired to work in a group specifically “charged with making recommendations for improving, among4

other things, the DCMA’s contract receipt and review process.”
Id. at 922

.

In 2008, prior to his employment at Appr io, Zaccari independently developed the Initial Software. The Initial
Software is a regulatory compliance program that automate s the generation of Microsoft Excel reports o n key search terms

. It work s by allowing users to “set out regulatory compliance provisions,” which the computer then uses to “search an uploaded document for key terms related to that provision

, ”
and then “ create [] a report that list[s] the key terms . . . [with] the page, line numb er, and associated regulatory provision for each mention of the key terms.” Id. at 921

.

In 2016, upon realizing that his software could be useful to Apprio for “efficiently implement [ing] contract review” and “automat[ing] contract receipt and review processes [

, ] ”
Zaccari updated the Initial Software on his own time and equipment. Id. at 570

– 71

. To accomplish this update, Zac cari
made what he calls “superficial or very simple” changes, like
“u pdat [ing] the code to allow a user to directly upload a [.]pdf file, rather than only a Word document” and other changes to “make the program compatible with newer versions of
Microsoft Excel.” Id. at 922. The “ base code [that] contain[ed] the keyword lookup and t he keyword search engine ,” however,

was left untouched

. Id. at 922.

T hese changes resulted in the Updated Software

— a new version of the program . Th e Updated Software had “10
additional functions” an d was realized from changing “[m]ore than half of the [underlying] code” from the Initial Software

. J.A. 1754

. After finishing the update , Zaccari brought the Updated Software to work to “ show

. . . [his] colleagues and a senior level government employee at DCMA.” Id. at 923. He additionally “informed Apprio that he could use the existing5

capabilities of [the software he had developed] to automate the DCMA’s manual contract receipt and review proces s.” Id. at 699

.

While some of the fac ts concerning what came next are disputed, the parties agree that, shortly after Zaccari’s demonstration at work, Apprio asked Zaccari for the Updated
Software and Zaccari provided it

. Apprio then turned the Updated Software over to DCMA, which in turn deployed it to
its own employees for use.

A bout a month after Zaccari’s demonstration , in June 2016, Apprio sent Zaccari the Agreement through the company’s human resources portal. Zaccari logged into the portal , “cl icked a link and proceeded to the [Agreement]
document.” Id

. at 923. The document included three provisions relevant here:

2.2 Prior Inventions [ : ] Inventions

. . . which I made prior to the commencement of My
Service are excluded from the scope of this Agreement and all inventions which I made prior to the commencement of My Service will be governed by assignment agreements I executed prior to the date hereof. To preclude any possible uncertainty, I have set forth on a Previous Inventions Disclosure Form

. . . a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the
commencement of M y S ervice, and that I both (a) may use in connection with My S ervice and (b) consider to be my property . . . and that I wish to have excluded from the scope of this6

Agreement

. . . . [Additionally,] Prior
Inventions shall not include inventions that I
hav e developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of My
S ervice if I do not use such inventions in
connection with My S ervice

. . . . If no such disclosure is made, I represent that the re are no Prior Inventions. If, in the course of My
S ervice, I incorporate a Prior Invention in to a Company product, process or machine, the Company is hereby granted and shall have a nonexclusive, royalty

- free, irrevocable, perpetual, worldwide license ( with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Comp any Inventions without the prior written consent of an authorized officer of the Company.

2.3 Assignment of Inventions [ : ] Subject to
Section [] 2.4

. . . I hereby assign and agree to assign in the future . . . to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar s tatutes, made or conceived or reduced to practice or learned by me

. . . during the period of My
Service []

. . . .7

2.4 Unassigned Inventions [ : ] I recognize that this Agreement will not be deemed to require assignment of any invention that was developed en tirely on my own time without the Company’s equipment, supplies, facilities, or
trade secrets and neither related to the Company’s actual or anticipated business, research or development, nor resulted from work performed by me for the Company.

Id. at 130

– 31. The Agreement also included a preamble that
read “ I hereby agree as set forth herein

, ” id. at 130, and a
conclusion that stated , in relevant part, “ I acknowledge and agree that the language herein shall be deemed to be approved by all parties heret o

. . . and that I have had an opportunity to consult with an attorney regarding the terms herein prior to signing this Agreement, ” id. at 133.

Zaccari admits to open ing this document, to having had the opportunity to read it, and to then click ing the “Acknowledge” button, which he says was the “only option on the computer screen ” available for closing the window

. Id. at 923. Zaccari did not subsequently submit any Previous
Inventions Disclosure Forms as directed by the Prior Inventions provision of the Agreement

, but also claims he both
“was

. . . never told that ‘agreeing’ to the document was a condition of [his] employment” and “didn’t understand [him]self to be signing a contract that would b ind [him]

. ” I d.

In May 2017

— nearly a year after Zaccari received the Agreement

— Apprio terminated Zaccari . Thereafter, Zaccar i refused Apprio’s requests to furnish all copies of the Updated
Software in his possession. Instea d

, Zaccari copyrighted the Updated Software in 2018 using a “One Work by One Author” application

, wherein he disclosed the entirety of the source8

code for the software and asserted that the software was completed in 2016 (during his employment at Apprio) , before

su in g Apprio.

B.

Zacca r i ’s central claim in his suit was that Apprio breached the Agreement by forcing him to turn over a copy of the Updated Software. S ee Zaccari v. Apprio , Inc. ( Zaccari I )

, No. 18

- cv

- 1560 (D.D.C. Jun. 29, 2018)

. In that case, Zaccari

a dmitted that he had “entered into the

. . . Agreement

, ” J.A. 594, and had “agreed to assign any rights in or to his work product to Apprio ‘during [his] employment or engagement as an independent contract or by [Apprio]

, ’” id. at 588 (quoting the Agreement).

While Zaccari I was pending , Apprio filed t his case . The

company alleged Zaccari breach ed the Agreement when he
failed to “assign any rights he [claims]” in the Updated
Software. Id. at 31. The District Court consolidated Zacc ari I
with the instant case and then stayed this case before address ing

Zaccari I first

.

The District Court then dismissed Zaccari I on the grounds
that Zaccari had failed to state a breach of contract claim. Zaccari v. Apprio Inc. , 390 F. Supp. 3d 103, 110 (D.D.C. 2019)

. The District Court then proceeded with this case, rul ing in Apprio’s favor in two judgments

. See Apprio, Inc. v. Zaccari ( Apprio I ), 2021 WL 2209404 (D.D.C. Jun. 1, 2021); Apprio
Inc. v. Zaccari ( Apprio II ), 2022 WL 971001 (D.D.C. Mar. 31, 2022)

. A pplying District of Columbia law as specified in the Agreement , the District Court f irst granted Apprio partial summary judgme nt as to the contractual assignment of rights on the grounds that the Agreement was binding and required Zaccari to assign his rights in the Updated Software to Apprio. Apprio I , 2021 WL 2209404, at *4

– *6, *12

. Second, a fter9

dismissing Zaccari’s intervening motions for reconsideration and for an order directing entry of final judgment under Rule 54(b), the District Court granted Apprio summary judgment on its breach of contract claim. Apprio II , 2022 WL 971001, at
*1

.

Zaccari now appeals the District Court’s partial summary judgment , summary judgment, and reconsideration rulings

. We have jurisdiction over each under 28 U.S.C. § 1291. We review the grant of partial and full summary judgment de novo

, Valancourt Books, LLC v. Garland , 82 F.4 th 1222, 1231 (D.C. Cir. 2023); Klayman v. Judicial Watch, Inc. , 6 F.4 th 1301, 1314 (D.C. Cir. 2021), and the denial of the motion for reconsideration for abuse of discretion, CostCommand, LLC v. WH Administrators, Inc. , 820 F.3d 19, 23 (D.C. Cir. 2016).

II.

As relevant here, the District Court made two holdings. It first held in its partial su mmary judgment decision that Zaccari’s “acknowledgment” of the Agreement created a binding contract that required Zaccari to assign all of his rights in the Updated Software to Apprio. Apprio I , 2021 WL 2209404, at *6

. Second, a fter denying Zaccari’s mot ion for reconsideration of the partial summary judgment decision, the
District Court held on summary judgment that Zaccari had breached three provisions of the Agreement

. For one

, it held
that Zaccari breached Section 1.1

, which restricts disclosing,
usin g , or publishing Apprio’s proprietary information

, by submitting a copyright application for the Updated Software that included proprietary information on the program without Apprio ’s authorization

. Apprio II , 2022 WL 971001, at *10

– *11

. For another

, the District Court held that in refusing Apprio’s request that Zaccari execute a confirmatory assignment to Apprio for the Updated Software , Zaccari10

breached Section 2.8 of the Agreement , which requires the signer to “assist [Apprio] in every proper way to obtain,
and

. . . enforce, United States and foreign Proprietary Rights relating to Company Inventions” and “execute, verify and deliver such documents and perform such other acts” as Apprio “reasonably requests” to “obtain [] ” or “perfect [] ” the assignment of rights over Apprio’s inventions

. Id. at * 12

. And finally

, it held Zaccari breached Section 7, which require d
Zaccari to “deliver to [Apprio] . . . any other material containing or disclosing any Company Inventions . . . or Proprietary Information of [Apprio]” at the end of his employment, by retaining copies of the Updated Software after
his termination. Id. We agree.

A.

1.

“For an enforceable contract to exist, the court must not only determine that there was an agreement to all material terms, but also that the parties intended to be bound

. ” Duffy v. Duffy , 881 A.2d 630, 636

– 37 (D.C. 2005). District of Columbia law “adheres to an ‘objective’ law of contracts, ”
which means that “ the written language embodying the terms
of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, ”

— that is, “ unless the written language is not susceptible of a clear and definite undertaking
or unless th ere is fraud, duress, or mutual mistake.” Dyer v.
Bilaal , 983 A.2d 349, 354

– 55 (D.C. 2009) (quoting DSP Venture Grp., Inc. v. Allen , 830 A.2d 850, 852 (D.C. 2003)). In practice, intent to be bound, “[m]utual assent

, ” or “meeting
of the minds

, ” as to a co ntract

, is “most clearly evidenced by the terms of a signed agreement,” but the “absence of one party’s signature on the written agreement will not defeat or invalidate the contract” if assent may otherwise be shown “by11

the conduct of the parties.” Davis v. Winfield , 664 A.2d 836, 838 (D.C. 1995). Indeed, since the “ultimate issue” when it
comes to mutual assent is whether the parties “objectively manifested” their intent “to be bound contractually,” Dyer , 983
A.2d at 357 (quoting 1836 S. St. Tenants Ass’ n v. Estate of B.
Battle , 965 A.2d 832, 837 (D.C. 2009)) , “[t]he intentions of parties to a contract can be found from written materials, oral expressions and the actions of the parties” as well, if needed beyond the written language of the contract, Duffy , 881 A.2d at
637.

Since Zaccari does not challenge the enforceability of the Agreement for lack of an “agreement to all material terms,” id.

at 636 , the only relevant question for determining whether Zaccari’s “acknowledgment” of the Agreement formed a

c ontract is whether the parties intended to be bound

— and for two reasons, the answer is yes. First, Zaccari’s “acknowledgment” is a signature for contractual purposes

. The

E lectronic Signatures in Global and National Commerce Act (“E

- Sign Act ”) provides t hat in “any transaction in or affecting interstate or foreign commerce,” a “signature, contract, or other record relating to such transaction may not be denied legal effect . . . solely because an electronic signature or electronic

record was used in its f ormation.” 15 U.S.C. § 7001(a). As relevant here, the E

- Sign Act also defines an “electronic signature” as “an electric sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the

record.” Id. § 7006(5). Here, when Zaccari c lick ed the “Acknowledge” button , he engaged an “electric

. . . process” that was “attached to or logically associated with” the Agreement and that falls within the expansive statutory definition of a signature. See id. A s the District Court12

concluded, Za ccari’s admission that he intended to click the “Acknowledge” button is necessarily also an admission that he intended to sign the Agreement

, see Apprio II , 2022 WL 971001, at *8; his engagement in that “electric process” is an “objective[] manifest[ation] ” of his intent to be bound

, Dyer

, 983 A.2d at 357. Moreover, as a matter of common sense,

Zaccari’s “ acknowledgment ” is meaningful evidence of his

intent to be bound in this particular circumstance because clicking a button in this manner is a common met hod of contractual acceptance in the world of clickwrap software

contracts

— the kind of contract Zaccari could reasonably be expected to be familiar with given his substantial background in computer programming.

Second, even if Zaccari had not signed the A greement, his

conduct otherwise evinces assent. See Davis , 664 A.2d at 838. Most notably, his decision to file Zaccari I to enforce the Agreement demonstrates that he considered the Agreement to be binding. Further, his admissions in the proceedings bel ow that the Agreement is a contract belie his position on appeal

. For example, Zaccari directly admitted in his amended answer to Apprio’s complaint that “Apprio and Zaccari entered into the Agreement” and that the Agreement is “a valid contract supported by consideration.” J.A. 700; see id. at 30. Zaccari also admitted that “he was bound to the Apprio Agreement” in his objections and responses to Apprio’s First Requests for

Admissions. Id. at 565.

2.

Zaccari ’s objections are summarily unavailing. As an initial matter, his suggestion that the Agreement was a company policy rather than a contract is upended by, among other elements, the plain text of the opening and closing13

paragraphs of the Agreement. The preamble

— which woul d have been immediately visible to Zaccari upon opening the

document

— clearly states

, “I hereby agree as set forth herein.”

Id. at 130. The conclusion, which Zaccari concedes he had the opportunity to read even if he chose not to, reiterates

, “I
acknowled ge and agree that the language herein shall be deemed to be approved by all parties hereto.” Id. at 133. Zaccari cites no authority to justify this alleged distinction between company policy and contract , leaving the Court only

with these terms that typi cally indicate a contract

.
Next, Zaccari ’s attempt to invalidate his assent to the Agreement through a manufactured distinction between his

“ acknowledgment ” and an agreement splits hairs . The law is clear that the word “accept” is not necessary to the fo rmation

of a contract

, and Apprio presents numerous examples of

admissions and conduct that show Zaccari understood that he was bound by the Agreement. And his contention that the

contract was not formed because “he did not read Section 11.9” is patently absurd. As a general rule “one who signs a contract has a duty to read it and is obligated according to its terms.” Pyles v. HSBC Bank USA, N.A. , 172 A.3d 903, 907 (D.C. 2017) (quoting PersTravel, Inc. v. Canal Square Assocs. , 804 A.2d 1108, 1110 (D.C. 2 002)). Accordingly, “absent fraud or mistake, one who signs a contract is bound by a contract which he has an opportunity to read whether he does so or not.” Id. (quoting PersTravel, Inc.

, 804 A.2d at 1110). Zaccari had the opportunity to read the Agreement when it appeared on his

screen. He also does not allege that he “had no other choice than to sign at that point,” Pyles , 172 A.3d at 907, only that the only button available on the human resources portal read “Acknowledg e.” Zaccari reasonably should have known that another option

— closing the program

— was available to him,14

but instead he clicked the “Acknowledge” button and manifested an acceptance that he now clearly regrets.

Third

, the statute of frauds defense Zaccari raises to assert
that his “acknowledgment” is an invalid signature is foreclosed by Anchorage

- Hynning & Co. v. Moringiello

. 697 F.2d 356 (D.C. Cir. 1983). In that case, a prospective buyer in a real

estate transaction stopped responding to a seller at th e eleventh hour following extensive negotiations between the parties

. Id.

at 358. As part of t he parties’ negotiations

, the seller draft ed a proposed contract that it presented to the prospective buyer

, who deemed it “completed and satisfactory

. ” Id. When it

became clear that the prospective buyer was not coming back to close the deal, t he seller filed suit

. Id. at 359. The prospective buyer raised a statute of frauds defense but also

admitt ed that he had met with the seller to n egotiate a sale and

that he had been satisfied by the final contract draft. Id . In light of these admissions, the seller filed a request for admissions, seeking concessions that showed the parties had an oral agreement, but received no response. Id. at 359

– 60. The

district court then ruled for the ever

- vanishing prospective buyer on summary judgment but this Court, applying District

of Columbia law, reversed on the grounds that “a defendant waives the protection of the statute of frauds, and hence is

ba rred from asserting it defensively, by admitting during the course of discovery either the making of the contract or facts

sufficient to establish its existence.” Id. at 362. So too here. Zaccari’s admissions conceding his understanding that the Agreeme nt was binding mean that he cannot raise a statute of

frauds defense now that a determination that the Agreement is valid is no longer in his interest

.15

B

.

We now turn to whether the Agreement bound Zaccari to assign all rights in the Updated Software to Apprio.

1.

“Copyright first ‘subsists’ when an author ‘fix[es]’ a work ‘in any tangible medium of expression. ’ ” Valancourt Books

, 82 F.4th at 1232 (quoting 17 U.S.C. § 102(a)). The creation of the work, then, is the operative moment for determining whether copyright has been gained, as copyright protection is “both instant and automatic,” in that i t “vests as soon as a work is captured in a tangible form, triggering a panoply of exclusive
ri ghts that can last over a century.” Georgia v. Public.Resource.Org, Inc.

, 590 U.S. 255, 275 (2020). Thereafter, under the Copyright Act, “each version [of the work] constitutes a separate work.” 17 U.S.C. § 101.

In light of this standard and the plain t ext of the Agreement, t he District Court correctly interpreted this relatively straightforward Agreement . The Assignment of Inventions provision plainly assigns to Apprio all “right, title and interest in and to any and all Inventions” an employee makes, conceives of or reduces to practice “during the period of [their] Service” with Apprio. J.A. 131. Zaccari concedes that he created the Updated Software during his time at Apprio. The Updated Software, accordingly, is covered by th is provision as a subse quent version of the Initial Software that plainly stands alone as “a separate work.” 17 U.S.C. § 101.

The District Court was also correct that none of the exceptions in the Prior Inventions provision or the Unassigned Inventions provision exempt Zaccari ’s creations from the Assignment of Inventions provision of the Agreement. The
Prior Inventions provision say s that , in order to exclude an16

invention from the scope of the Agreement, the signatory is required to

set forth on a Previous Inventions Disclosu re Form

. . . a complete list of all Inventions that [they] have

. . . developed

. . . prior to the commencement of [their] Service, and that [they] both (a) may use in connection with [their] Service and (b) consider to be [their] property.

J.A. 130. Importantly, that provision also states that “[i]f no such disclosure is made, [the signatory] represents that there
are no Prior Inventions.” Id. at 131. Accordingly, t he only way to exclude a prior invention from the scope of the Agreement

w ithout a disclosure form is if the relevant invention developed “prior to the commencement” of an employee’s service is “not use[d]

. . . in connection with [their] Service.” Id. at 130.
Zaccari did not disclose the Initial Software . By the terms of
the Agreement, his omission equates to a representation that
the Initial Software is not a n exempted prior invention . Zaccari
also used the Initial Software in connection with his service when he used it to create the Updated Software that he then brought to work to share with his colleagues and DCMA

— an Apprio client Zaccari would not have had any relationship with but for his position as an Apprio employee . For these reasons, the Prior Inventions provision does not exclude the Initial Software from the scop e of the Agreement.

The Updated Software is similarly not exempted through the Unassigned Inventions provision. That provision directs that the Assignment of Inventions provision does not apply to
inventions “ that [were] developed entirely on [the employ ee’s]
own time without using the Company’s equipment, supplies, facilities, or trade secrets and neither related to the Company’s actual or anticipated business, research or development

, nor17

resulted from work performed by [the employee] for the Company.” Id. at 131. Even though Zaccari created the Updated Software on his own time and equipment, its purpose and function show that it is unquestionably related to Apprio’s actual “business, research [and] development” with DCMA.

I ndeed, this alignment is wh at motivated Zaccari to bring the Updated Software to his office for a demonstration before his colleagues and a DCMA representative in the first place. To conclude otherwise would require ignoring the basic facts in
the record.

2.

Zaccari protests this conclusion with an assertion that, even if the Agreement is a binding contract, it did not effectively assign his copyright in the Updated Software to Apprio. In support, Zaccari posits that (1) the Assignment of Inventions provision cannot apply to any portion of the Updated Software that replicates any element of the Initial Software; (2 ) the Prior Inventions provision cannot assign his rights in the Updated Software because it is a license provision rather than an assignment provision ; an d (3) the Unassigned Inventions provision should be read to protect his rights in both
versions of the software because the four criteria in that provision mirror the language of certain state labor statutes that are designed to “ limit [] employer claims to employee intellectual property

. ” Appellant’s Br. 25 (emphasis in original). In addition to these three main points, Zaccari also contends that each provision should be construed in his favor because they are, in one manner or another, ambiguous.

D espite Zaccari’s creative engagement with this issue

, the Court cannot entertain a number of his arguments because they
have been forfeited. “It is well settled that issues and legal theories not asserted at the District Court level ordinarily will
not be heard on appeal

. ” Huron v. Cobert , 809 F.3d 1274, 128018

(D.C. Cir. 2016) (quoting District of Columbia v. Air Florida,

Inc. , 750 F.2d 1077, 1084 (D.C. Cir. 1984)) . This applies equally to issues and arguments; “absent exceptional circumstances, a party forfeits an argument by failing to press
it in district court.” Gov’t of Manitoba v. Bernhardt , 923 F.3d 173, 179 (D.C. Cir. 2019). Moreover, “[a] party forfeits an argument by mentioning it only ‘in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’” Id. (quoting Schneider v. Kissinger , 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)); see also D istrict of Columbia v. Straus , 590 F.3d 898, 903 (D.C. Cir. 2010)

.
According ly

, Zaccari’s Assignment of Inventions provision objection s cannot be heard on appeal . Zaccari specifically argues that the Assignment of Inventions provision does not require t hat he turn over any portion of the Updated
Software that replicates any portion of code from the Initial
Software because the Updated Software is a derivative work

, which the Copyright Act defines as a “work based upon one or more preexisting works

, ” 17 U .S.C. § 101, that only allows for transfer of copyright in “the material contributed by the author of [the derivative] work” and not “any exclusive right in the preexisting material

, ” id. § 103. Put simply, Zaccari did not develop the legal argument neces sary to even gesture at the possibility that the Updated Software could be classified as a
derivative work in the proceedings below

. Even going so far

as to consider that he alleged that the Updated Software was
derivative of the Initial Software in Zacca ri I

, he appears to
have raised that point in a wholly different context

— to assert that Apprio had created derivative works of the Updated Software without his permission

. Seeing no “ exceptional
circumstances” that warrant consideration of th is argument, it
will not be considered because the District Court did not have19

a n opportunity to pass on the issue with the benefit of the
factual record before it. Air Florida, Inc. , 750 F.2d at 1084.

Zaccari’s contentio ns that he should have prevailed on summary judgment because a number of contractual terms were ambiguous meet the same fate. For the same reasons
described above , th e Court cannot consider this argument. There are zero references to “ambiguities” or “ co ntra proferentem ” 1 i n the record before us. While Zaccari did cite
to caselaw in his opposition to partial summary judgment that addresses how contractual ambiguities should be resolved

, he presented his attendant argument only in the “most skeletal

way , ” Gov’t of Manitoba , 923 F.3d at 179 (quoting Schneider

, 412 F.3d at 200 n.1 )

— he neither interpreted those cases to support an argument about the resolution of ambiguities nor
raised the doctrine of contra proferentem

.

Z ac cari’s remaining contract interpretation arguments

, while not forfeited, are easily dispatched as inapposite or unpersuasive. His contention that the Updated Software cannot be assigned through the Prior Inventions provision is irrelevant to any of the holdings in the Dis trict Court or the questions on appeal

— the Agreement effectively assigns Zaccari’s rights in the Updated Software to Apprio through the Assignment of Inventions Provision, not the Prior Inventions provision. To the degree that Zaccari is arguing that Appr io is not entitled to the assignment of rights in any thing but the derivative material
in the Updated Software and that the Prior Inventions provision fails to effectively license the original code from the Initial Software to Apprio, that argument is fore closed by Zaccari’s own failure to reserve his rights in the Initial Softwar e as a

1 Contra proferentem is “[t]he doctrine that, in the interpretation of documents, ambiguities are to be construed unfavorably to the
drafter.” Contra Proferentem

, B LACK ’ S L AW D ICTIONARY (11th ed. 2019).20

separate prior invention. Without such a designation, the Updated Software is for all intents and purposes a complete
work that Zaccari must ass ign, in its totality , to App rio.

His next argument

— that the Updated Software meets the requirements laid out in the Unassigned Inventions provision for exemption from the Agreement

— relies on a wild assertion
that the plain text of th at provision should be informed by
outside sources completely unrelated to the contract. On Zaccari’s read, the text of the provision should be contorted to serve public policy interest s in limit ing employer claims to employee intellectual property because the text is substantively
similar to certain pro visions in state labor statutes in California, Delaware, Illinois, Kansas, Minnesota, North Carolina, and Washington. Separate and apart from the fact that the Agreement is governed by District of Columbia law rather than the law of any of these states, t his is also just not how contract interpretation works. As a general matter, “ t he court interprets the unambiguous terms of a contract as a matter of law .” Steuart Inv. Co. v. The Meyer Grp., Ltd. , 61 A.3d 12 2 7, 1239 (D.C. 2013). “[W]here a contract is ‘reasonably susceptible of different constructions or interpretation,’” however, “‘the meaning of the language must be evinced from extrinsic evidence on the intent of the parties.’” Id. (quoting District of
Co lumbia v. D.C. Pub. Serv. Comm’n , 963 A.2d 1144, 1155

– 56 (D.C. 2009)). Zaccari does not allege that t he Unassigned Inventions provision is ambiguous. We agree, so we must interpret the terms of this provision of the Agreement by
themselves. Even if Zacc ari had alleged the Unassigned Inventions provision was ambiguous, the interpreting court would be limited to considering “extrinsic evidence ” like “ the conduct and prior dealings of the parties, the circumstances surrounding the making of the contract, an d industry standards” that actually gets at the intent of the parties

— not a small smattering of state statutes with similar language that had21

no bearing on the parties ’ intentions with respect to the

contract. Id.

Zaccari makes a final passing allegatio n that the District
Court erred in finding that the Agreement was retroactively applicable, urging instead that the earliest effective date of the Agreement would have been the date of his “ acknowledgment ” if the facts are construed in the light most favor able to him.
Th e Agreement, however, renders this objection null, as it unambiguously explains that the contract applies to inventions created during “[Zaccari’s] Service,” which the Agreement defines as “all times during [his] employment.” J.A. 130.

C

.

Finally, Zaccari argues that he did not breach the Agreement and that the District Court’s breach of contract analysis was flawed. This argument, however, is also forfeited.

In his briefs, Zaccari challenges the District Court’s holding as to each sect ion he breached. He first contends that he did not violate Section 1.1 of the Agreement, which prohibits public disclosures of Apprio’s proprietary information, by “[p]roviding a single deposit copy of an unpublished work to the Copyright Office

, ” Appella nt’s Br. 63

, because the restrictions in that section are most reasonably read to prohibit “disclosures of a public nature or perhaps giving of information to commercial competitors,” rather than submitting information to the Copyright Office

, i d. at 65.
Zaccari next argues that his refusal to execute a “Confirmatory Assignment of Copyright” agreement (“Confirmatory Agreement”) is not a violation of Section 2.8 of the Agreement, which requires the employee to “execute, verify and deliver assignmen ts of

. . . Proprietary Rights to the Company,” id. at22

63, because the Confirmatory Agreement would take away his “moral rights,” which he says are not governed by the Agreement

, 2 i d. at 67. Third, Zaccari objects that he did not

violate Section 7 of the Agreement, which governs the return of company documents and property upon employee termination, because he “retain[ed] documents and materials already owned and possessed by [himself]” and did not “breach any obligation to ‘ [return] ’ them” under the Agre ement. Id. at
63

. As in the case of the forfeited arguments described in the previous section, we need not consider Zaccari’s breach of contract arguments at all because they were “not asserted at the

District Court level.” Huron , 809 F.3d at 1280 (quot ing Air Florida, Inc. , 750 F.2d at 1084) . He did not meaningfully dispute that he had breached Sections 1.1, 2.8 and 7 of the Agreement in any of his briefs. Instead, he dedicated his entire opposition to summary judgment below to his statute of frauds

a rgument

. His defense against the breach of contract allegations is composed of one conclusory statement: “ I n the absence of a binding contract

. . . there can be

. . . no[] breach by ” Zac c ari

. J.A. 1516. Because Zaccari failed to assert th ese argument s in the District Court , they are forfeited.

2 Moral rights, in countries that recognize such rights, are distinguished from copyrights and may include “a right of divulgation (that i s , the right to control the first public distribution) [;]” “ a right of attribution (the right to receive credit for the work) [;]” “ a right of integrity (the right to object to

alt erations in the work which will damage the author’s honor and reputation) [;]” and “ a right to withdraw the work from circulation.” M ARY
L A F RANCE
, C OPYRIGHT L AW IN A N UTSHELL 195 (2d ed. 2011) ; see also

M ELVILLE B. N IMMER & D AVID N IMMER , 3 N IMMER ON C OPYRIGHT § § 8D.01 [A] (Matthew Bender rev. ed. 2023)

.23

* * * * *

For the foregoing reasons, we affirm the judgments of the
District Court.

So o rdered.