United States Court of Appeals 

for the Federal Circuit ______________________ 

KOLCRAFT ENTERPRISES, INC.,

Appellant

v.

GRACO CHILDREN'S PRODUCTS, INC.,

Appellee

______________________ 

2018-1259, 2018-1260

______________________ 

Appeals from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Nos. IPR2016-

00816, IPR2016-00826.

______________________ 

Decided: July 2, 2019

______________________ 

KYLE WALLENBERG, Niro McAndrews LLC, Chicago, 

IL, argued for appellant. Also represented by RAYMOND P.

NIRO, JR. 

 JOHN W. HARBIN, Meunier Carlin & Curfman, LLC, Atlanta, GA, argued for appellee. Also represented by 

GREGORY JOSEPH CARLIN, WALTER HILL LEVIE, III, WARREN 

JAMES THOMAS. 

 ______________________ 

Before MOORE, REYNA, and CHEN, Circuit Judges.
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

PRODUCTS, INC. 2

REYNA, Circuit Judge. 

Kolcraft Enterprises, Inc. appeals the decision of the 

United States Patent Trial and Appeal Board finding U.S. 

Design Patent Nos. D604,970 and D616,231 unpatentable

as obvious in light of the prior art. The primary issue on 

appeal is whether Kolcraft Enterprises, Inc. antedated the 

prior art with evidence of its prior conception, diligence, 

and reduction to practice. The Board determined that

Kolcraft Enterprises, Inc. did not. We agree. Accordingly, 

we affirm.

BACKGROUND

Kolcraft Enterprises, Inc. (“Kolcraft”) is the assignee of 

U.S. Design Patent No. D604,970 S (“the ’970 patent”) and 

U.S. Design Patent No. D616,231 S (“the ’231 patent”). The 

’970 and ’231 patents are both titled “Exposed Legs for a 

Play Yard” and have an effective filing date of November 5, 

2004. Each patent has one claim.

The ’970 patent contains seven figures. Figures 1 and 

2 are depicted below.

J.A. 48–49. Figure 1 is “a perspective view of exposed legs 

for a play yard,” and Figure 2 is “a front view of the design 

of FIG. 1.” J.A. 46, 48–49. The ’970 patent also states that 

“[t]here is no fabric covering the exposed legs shown in any 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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of FIGS. 1–7.” J.A. 46. The dashed lines do not form part 

of the claimed design. See MPEP § 1503.02 (9th ed. 2018). 

The ’231 patent has five figures. Figures 1 and 2 are 

provided below. Figure 1 is “a perspective view of a playard 

with exposed legs.” J.A. 52. Figure 2 is “a front view of the 

playard of FIG. 1.” Id. “There is no fabric covering the 

exposed legs shown in any of FIGS. 1–5.” Id. 

On March 30, 2016, Graco Children’s Products, Inc. 

(“Graco”) filed a petition for inter partes review (“IPR”) 

challenging the ’970 patent. A day later, Graco filed a second IPR petition challenging the ’231 patent. Graco proposed eleven grounds of unpatentability for each patent, 

including a ground for each patent that the claim is obvious 

in light of U.S. Design Patent No. D494,393 assigned to 

Chen (“Chen ’393”). The United States Patent Trial and 

Appeal Board (“Board”) instituted a single trial addressing 

both patents on the asserted grounds related to Chen ’393. 

Kolcraft did not submit a preliminary owner response

to Graco’s petitions, but it filed a six-page Patent Owner 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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Response1 after the Board instituted trial. In its Patent 

Owner Response, Kolcraft included a declaration signed by 

inventors Damon Oliver Casati Troutman and Edward B.

Bretschger (“Inventor Declaration”), with Exhibits A–H 

appended to the declaration. The Patent Owner Response 

argued that at least one of Exhibits A–H depicted features 

of the claimed invention identified by the Board: (1) curved 

legs that bow outward; (2) no fabric covering the exposed 

legs; and (3) outward flaring at the top of the legs. Exhibits 

A–H are a collection of photos and sketches of play yards

and instructions for assembling the prototype of the play 

yard that Troutman and Bretschger claim to have invented. Neither the Inventor Declaration discussing the 

exhibits nor the exhibits themselves included specific dates 

of conception. The Inventor Declaration redacted the dates 

when the exhibits were purportedly created, using blank 

spaces where relevant dates would have been to show that 

the inventions described in the ’970 and ’231 patents were 

conceived of and reduced to practice on “a date prior to January 7, 2004,” the effective filing date of Chen ’393. J.A. 

1181–84. 

In March 2017, Graco deposed inventors Troutman and 

Bretschger. Before the depositions took place, Kolcraft provided Graco with an unredacted version of the inventors’

declaration, where the blank spaces were replaced with alleged dates of conception and reduction to practice. When 

questioned about the source of these dates, inventor Troutman testified that the dates were based on metadata associated with the computer files containing the exhibits. 

Graco filed under seal with its reply the transcripts of 

Bretschger’s and Troutman’s depositions. One day before 

the July 6, 2017 oral hearing, Kolcraft filed under seal an 

unredacted version of the Inventor Declaration attaching 

 

1 Kolcraft filed the same Patent Owner’s Response 

for each IPR. 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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the exhibits in paper form. Kolcraft did not file with the 

Board the computer files of the exhibits containing the 

metadata showing the purported dates of conception. During the oral hearing before the Board, Kolcraft admitted 

that the unredacted version of the Inventor Declaration 

was “not in the record.” J.A. 2006. 

At trial, the Board addressed whether Chen ’393 qualifies as prior art to the patents-in-suit and whether the patents-in-suit are obvious in view of Chen ’393. The Board 

concluded that Chen ’393 is prior art because Kolcraft 

failed to show that conception, diligence, and reduction to 

practice of the ’970 and ’231 patents occurred before Chen 

’393 was filed. The Board also found that the testimony of 

inventors Bretschger and Troutman—explaining that they 

conceived of the play yard invention before the effective filing date of Chen ’393—was not corroborated by non-inventor testimony, documents, or other evidence. Notably, the 

Board relied on the redacted version of the Inventor Declaration and did not take into account inventor deposition 

testimony of prior conception because the Board deemed 

Kolcraft’s reliance on inventor deposition testimony to be 

waived as it was raised for the first time at oral hearing. 

The Board also determined that the patents-in-suit were 

obvious in view of Chen ’393. 

Kolcraft timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

On appeal, Kolcraft does not contest that, if we agree 

that Chen ’393 is prior art, then the ’970 and ’231 patents 

are obvious. Kolcraft instead challenges whether the 

Board erred in finding that Troutman and Bretschger did 

not conceive of the inventions of the ’970 and ’231 patents 

before the filing of Chen ’393 and that they did not exercise 

reasonable diligence or reduce to practice the patented inventions before January 7, 2004. 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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This case turns on the corroboration of inventor testimony. Only if there is sufficient corroboration do we address whether Troutman and Bretschger conceived of the 

patented inventions prior to January 7, 2004, the date 

Chen ’393 was filed. 

Inventor testimony of conception must be corroborated 

by other, independent information. Apator Miitors ApS v. 

Kamstrup A/S, 887 F.3d 1293, 1295 (Fed. Cir. 2018) (citing 

Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577 (Fed. Cir. 

1996); Hahn v. Wong, 892 F.2d 1028, 1032–33 (Fed. Cir. 

1989)). Whether there is sufficient corroboration is governed by a “rule of reason” analysis, which requires all pertinent evidence to be examined to determine whether the 

inventor’s testimony is credible. In re NTP, Inc., 654 F.3d 

1279, 1291 (Fed. Cir. 2011); Kridl v. McCormick, 105 F.3d 

1446, 1450 (Fed. Cir. 1997). 

Conception is “the formation, in the mind of the inventor of a definite and permanent idea of the complete and 

operative invention, as it is thereafter to be applied in practice.” REG Synthetic Fuels, LLC v. Neste Oil Oyj, 841 F.3d 

954, 962 (Fed. Cir. 2016) (emphasis omitted) (quoting Coleman v. Dines, 754 F.2d 353, 359 (Fed. Cir. 1985)); see also 

Hoop v. Hoop, 279 F.3d 1004, 1007 (Fed. Cir. 2002) (stating 

that the standard for inventorship for design patents is the 

same as that for utility patents). Conception is a question 

of law premised on underlying factual findings. In re 

VerHoef, 888 F.3d 1362, 1365 (Fed. Cir. 2018); Apator, 887 

F.3d at 1295. Sufficient corroboration is one of those factual findings. REG Synthetic, 841 F.3d at 958. We review 

the Board’s legal conclusions de novo and its factual findings for substantial evidence. Apator, 887 F.3d at 1295. 

Kolcraft relies on inventor deposition testimony, the 

Inventor Declaration, and Exhibits A–H to show that the 

inventors of the ’970 and ’231 patents conceived and diligently reduced to practice the patented inventions before 

January 7, 2004. All cited evidence of prior conception, 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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however, originated with the inventors of the ’970 and ’231 

patents. The Board, in considering only the redacted Inventor Declaration, found that Exhibits A–H and the Inventor Declaration “are undated and find identification, if 

at all, only via the conclusory and uncorroborated testimony of the inventors.” J.A. 40. There is no evidence in 

the record independently corroborating the inventors’ alleged conception prior to Chen ’393. See Apator, 887 F.3d 

at 1295 (stating that “evidence of corroboration must not 

depend solely on the inventor himself” (quoting Cooper v. 

Goldfarb, 154 F.3d 1321, 1330 (Fed. Cir. 1998))). Therefore, substantial evidence supports the Board’s finding that 

the Inventor Declaration and Exhibits A–H do not corroborate dates of prior conception sufficient to antedate Chen 

’393. 

Kolcraft argues that the Board should have considered 

both the unredacted Inventor Declaration and the inventor 

deposition testimony of prior conception in its Final Written Decision. That the Board did not consider the unredacted Inventor Declaration or inventor deposition 

testimony (even if not waived) is immaterial here because 

both are supported solely by the inventors themselves. 

In the same vein, specifics regarding Exhibits A–H are 

supported solely by Troutman and Bretschger. The inventors declare that the drawings and prototypes depicted in 

Exhibits A–H were created on “a date prior to January 7, 

2004.” J.A. 1182. But these dates are supported only by 

inventor testimony. Therefore, Exhibits A–H fail to independently corroborate any inventor testimony showing 

prior conception. See Hahn, 892 F.2d at 1032–33 (“The inventor, however, must provide independent corroborating 

evidence in addition to his own statements and documents.”); Kridl, 105 F.3d at 1450 (stating that corroboration is “independent confirmation of the inventor’s 

testimony”). 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

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Kolcraft contends that Exhibits A–H do not need to be 

corroborated by non-inventor testimony or independent evidence because they are “physical exhibit[s]” that are selfexplanatory. Appellant Br. 28–29. Indeed, the court is capable of comparing the photos and sketches of the various 

play yards illustrated in Exhibits A–H with the claimed invention, but the fact remains that these exhibits are undated and lack any showing of authorship. The evidence 

as to the dates of creation of these Exhibits is found only in 

the Inventor Declaration and not in the Exhibits themselves. 

Kolcraft also argues that the metadata associated with 

the Exhibits shows the dates when they were created. Yet

the metadata is not part of the record. The only other discussion of metadata as possible corroborating evidence is 

found in the deposition testimony of inventor Troutman, 

which is insufficient to corroborate inventor testimony of 

prior conception. See Chen v. Bouchard, 347 F.3d 1299, 

1310 (Fed. Cir. 2003) (“Evidence of the inventive facts must 

not rest alone on the testimony of the inventor himself.”); 

see also Brown v. Barbacid, 276 F.3d 1327, 1335 (Fed. Cir. 

2002) (stating that “the physical evidence in this case may 

not single-handedly corroborate” inventor testimony). 

We addressed the question of inventor corroboration in 

Apator, 887 F.3d at 1293. There, we concluded that inventor testimony of prior conception was not sufficiently corroborated because all supporting evidence depended solely 

on the inventor. Id. at 1295–96. The inventor provided a 

declaration in which he stated that he conceived of his invention before the effective filing date of the prior art. Id.

at 1294. To corroborate the inventor testimony, patent 

owner Apator Miitors ApS (“Apator”) also proffered three 

unwitnessed emails from the inventor to third parties

dated before the effective filing date of the prior art and 

various drawings of the claimed invention with file naming 

conventions indicating dates of creation before the filing 

date of the prior art. Id. at 1294–95. The emails 
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purportedly contained attachments showing prior conception, but there was no indication from the email headers 

that a file was attached. Id. at 1296–97. Nor did the bodies 

of the emails indicate the content of the attachments. Id.

at 1296. For each of the emails and drawings, the only record evidence explaining the content of the attachments and 

the date of the drawings came from the Inventor Declaration. Id. at 1296–97. Without the Inventor Declaration, 

the court could not independently discern whether a file 

was attached to the emails, the content of any attachments,

or the date the drawings were created. Id. As a result, we 

held that Apator failed to provide evidence corroborating 

inventor testimony of prior conception. Id. at 1297.

Here, the purportedly corroborating evidence is even 

weaker than the evidence presented in Apator. The record 

contains only the Inventor Declaration, inventor deposition 

testimony, and undated photos attached to the Inventor 

Declaration. Only the Inventor Declaration, i.e., inventor 

testimony, supports the purported dates showing conception prior to January 7, 2004. Inventor testimony alone 

cannot prove conception. NFC Tech., LLC v. Matal, 871 

F.3d 1367, 1372 (Fed. Cir. 2017); Price v. Symsek, 988 F.2d 

1187, 1194 (Fed. Cir. 1993). Considering all the evidence 

in the record, a reasonable mind could conclude that 

Kolcraft failed to independently corroborate inventor testimony of prior conception. Accordingly, we hold that substantial evidence supports the Board’s finding that 

Kolcraft has not established conception prior to the effective filing date of Chen ’393. Because prior conception has 

not been established, we need not address the issue of diligence. See Apator, 887 F.3d at 1297. 

CONCLUSION

We have considered Kolcraft’s remaining arguments 

and find them unpersuasive and immaterial to the question of corroboration. We hold that substantial evidence 

supports the Board’s finding that Kolcraft failed to 
KOLCRAFT ENTERPRISES, INC. v. GRACO CHILDREN'S 

PRODUCTS, INC. 10

corroborate inventor testimony of prior conception. Accordingly, we affirm the Board’s determination that the ’970 

and ’231 patents are unpatentable as obvious in view of 

Chen ’393.

AFFIRMED

COSTS

No costs.