NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RICKY KAMDEM-OUAFFO,

Plaintiff-Appellant

v.

PEPSICO INC., PETER S. GIVEN, JR., NAIJIE 

ZHANG, SCENTSATIONAL TECHNOLOGIES LLC, 

STEVEN M. LANDAU,

Defendants-Appellees

______________________ 

2016-1668

______________________ 

Appeal from the United States District Court for the 

Southern District of New York in No. 7:14-cv-00227-KMK, 

Judge Kenneth M. Karas.

______________________ 

Decided: August 5, 2016

______________________ 

RICKY KAMDEM-OUAFFO, New Brunswick, NJ, pro se.

ROBERT LAWRENCE MAIER, Baker Botts, LLP, New 

York, NY, for defendants-appellees PepsiCo Inc., Peter S. 

Given, Jr., Naijie Zhang. Also represented by JENNIFER 

COZEOLINO TEMPESTA. 
2 KAMDEM-OUAFFO v. PEPSICO INC. 

MELVIN C. GARNER, Leason Ellis LLP, White Plains, 

NY, for defendants-appellees ScentSational Technologies 

LLC, Steven M. Landau. Also represented by LAUREN 

BRETTE SABOL; JOEL B. ROTHMAN, Schneider Rothman IP 

Law Group, Boca Raton, FL.

______________________ 

Before DYK, BRYSON, and REYNA, Circuit Judges.

PER CURIAM. 

Dr. Ricky Kamdem-Ouaffo appeals from a decision of 

the United States District Court for the Southern District 

of New York dismissing with prejudice Dr. KamdemOuaffo’s Second Amended Complaint. Kamdem-Ouaffo v.

PepsiCo, Inc., No. 14-CV-227, 2016 WL 369684, at *1 

(S.D.N.Y. Jan. 26, 2016). We affirm. 

BACKGROUND

Dr. Kamdem-Ouaffo worked as a food scientist at 

PepsiCo, Inc.’s (“PepsiCo”) research and development 

facility in Valhalla, NY, from July 14, 2008, to September 

28, 2009, for which he received $82,142 in compensation 

for his work. [Id.] He was not formally employed by 

PepsiCo, but by Subex Technologies, Inc. (“Subex”), which 

provided his services to PepsiCo. Before beginning work, 

on July 9, 2008, Dr. Kamdem-Ouaffo signed an agreement 

(the “Agreement” or “Attachment B”) in which he stated 

that he did “hereby assign and agree to assign to [PepsiCo] all [his] right, title and interest in and to all inventions, discoveries, improvements, ideas, . . . and other 

works of authorship (collectively, ‘Intellectual Property’), 

whether or not patentable, . . . created, developed, written 
KAMDEM-OUAFFO v. PEPSICO INC. 3

or conceived by [him] during the period of such work.”

Appendix (“App.”) tab 22 at 1.1 

 

1 Attachment B to the Staffing Supplier Agreement, 

titled “Staffing Supplier Employee Agreement Regarding 

Confidentiality and Intellectual Property,” provided: 

In consideration of payment to me by my employer, the Staffing Supplier named below . . . for the 

performance of work or assignments for PepsiCo, 

Inc. or any of its affiliates (hereinafter “Company”) . . . I agree to the following provisions:

A. I hereby assign and agree to assign to Company all my right, title and interest in and to all inventions, discoveries, improvements, ideas, 

products, formulae, machines, mask works, designs, methodologies, processes, know-how, research and development, . . . and other works of 

authorship (collectively, “Intellectual Property”), 

whether or not patentable, . . . created, developed, 

written or conceived by me during the period of 

such work . . . in whole or in part

1. In the course of such work or assignment, or

2. Which are suggested by or result from any 

task assigned to me . . . or

3. With the use of Company’s time, material, 

facilities, or private or proprietary information; 

. . . . 

C. This Agreement does not constitute a contract 

of employment between Company and me . . . . 

Id. The Agreement identified Subex Technologies Inc. as 

the Staffing Supplier. Id. at 2. Dr. Kamdem-Ouaffo also 
4 KAMDEM-OUAFFO v. PEPSICO INC. 

Dr. Kamdem-Ouaffo alleges that, no later than September 16, 2009, PepsiCo “expunged [his] name from” 

intellectual property he created during his employment. 

Kamdem-Ouaffo, 2016 WL 369684, at *2 (internal quotation marks and citation omitted). On September 28, 2009, 

Dr. Kamdem-Ouaffo’s work assignment contract expired 

and it was not renewed. Dr. Kamdem-Ouaffo sent a letter 

to PepsiCo in which he made an “authorship claim on any 

current or future work resulting in . . . flavor encapsulates 

or . . . aroma delivery systems.” Id. (internal quotation 

marks and citation omitted). PepsiCo subsequently filed 

five patent applications. Four of the applications remain 

pending. One of the applications became U.S. Patent No. 

8,474,637 (“the ’637 patent”) for “Releasable Entrapment 

of Aroma Using Polymeric Matrix,” granted on July 2, 

2014. Id. at *3. The named inventors of the ’637 patent 

are Dr. Naijie Zhang and Dr. Peter Given, two PepsiCo 

employees. See ’637 patent. On October 11, 2012, Dr. 

Kamdem-Ouaffo submitted a request to PepsiCo, asking 

that it amend the relevant patent applications and patent

to credit him as an inventor. PepsiCo did not reply or 

make any amendments. 

Dr. Kamdem-Ouaffo commenced this action on January 31, 2014, [id.] initially alleging thirteen causes of 

action against PepsiCo, Dr. Zhang, and Dr. Given.2 Pep-

 

signed “Attachment C to the Staffing Supplier Agreement: 

Acknowledgement of Temporary Work Assignment,” 

which stated “I understand that I am an employee of the 

Staffing Supplier and I am not an employee of PepsiCo, 

Inc. or any of its affiliates (collectively, ‘PepsiCo’).” Id. at 

3. 

2 Dr. Kamdem-Ouaffo alleged “breach of intellectual property agreement,” “wrongful appropriation of plaintiff's intellectual property,” “fraudulent obtaining of 

signature,” “correction of inventorship,” “unjust enrich-
KAMDEM-OUAFFO v. PEPSICO INC. 5

siCo filed a motion to dismiss on June 6, 2014, and the 

district court dismissed the First Amended Complaint 

without prejudice on March 9, 2015. On March 25, 2015, 

Dr. Kamdem-Ouaffo filed his Second Amended Complaint, alleging five causes of action, and joining ScentSational Technologies LLC and its Chief Technology Officer 

Steven Landau (collectively, “ScentSational”).3 Dr. 

Kamdem-Ouaffo alleged (1) that the Agreement is unenforceable, invalid, or voidable; (2) unjust enrichment; (3) 

constructive trust; (4) correction of inventorship under 35 

U.S.C. § 256; and (5) defamation.4 

 

ment,” “the necessity of constructive trusts,” a “request for 

subpoenas,” three causes of action relating to alleged false 

statements made to the USPTO, and three causes of 

action relating to other alleged criminal conduct. 

Kamdem-Ouaffo, 2016 WL 369684, at *3. 

3 After ScentSational and PepsiCo filed motions to 

dismiss the Second Amended Complaint, and without the 

court’s permission, Dr. Kamdem-Ouaffo submitted a 

Proposed Second Amended Complaint With More Definitive Statements (“Revised Second Amended Complaint”).

The district court did not consider, for the purposes of 

resolving the motions to dismiss, Dr. Kamdem-Ouaffo’s 

Revised Second Amended Complaint. It did not abuse its 

discretion in doing so, having determined that the filing 

was untimely, dilatory, and “the purportedly more definitive statements contained in the Revised [Second Amended Complaint] ultimately offer ‘no clue as to how the 

[Second Amended Complaint’s] defects would be cured.’” 

Kamdem-Ouaffo, 2016 WL 369684, at *4 n.8 (quoting 

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 

797 F.3d 160, 190 (2d Cir. 2015)). 

4 Dr. Kamdem-Ouaffo joined ScentSational only 

with respect to his correction of inventorship claim. The 

district court did not reach the issue of whether ScentSa-
6 KAMDEM-OUAFFO v. PEPSICO INC. 

The district court dismissed the Second Amended 

Complaint with prejudice. Dr. Kamdem-Ouaffo appeals. 

We have jurisdiction under 28 U.S.C. § 1295(a)(1). 

DISCUSSION

I 

We review de novo the district court’s dismissal of a 

complaint for failure to state a claim under Fed. R. Civ. P. 

12(b)(6) and review de novo the district court’s dismissal 

of a complaint for lack of standing. Rothstein v. UBS AG, 

708 F.3d 82, 90 (2d Cir. 2013). 

II

This case involves essentially three sets of causes of 

action: (1) unenforceable contract, unjust enrichment, and 

constructive trust; (2) correction of inventorship under 35 

U.S.C. § 256; and (3) defamation. We first address Dr. 

Kamdem-Ouaffo’s claims of unenforceable contract, 

unjust enrichment, and constructive trust. “[W]e may 

affirm the judgment of the district court on any ground 

that finds a basis in the record . . . .” Rothstein, 708 F.3d 

at 94. 

The district court found that Dr. Kamdem-Ouaffo’s 

“bare allegations of lack of mutual assent, failure to 

disclose material facts to . . . Plaintiff, and ambiguity, . . . 

are no more than naked assertions devoid of further 

factual enhancement,” and held that Dr. Kamdem-Ouaffo 

failed to establish any right to relief for an unenforceable 

contract. Kamdem-Ouaffo, 2016 WL 369684, at *8, 10 

(internal quotation marks, alterations, and citations 

omitted). First, the district court rejected Dr. KamdemOuaffo’s allegation of lack of mutual assent on the basis 

that “he was never given the opportunity to review the 

 

tional was properly joined since it resolved the correction 

of inventorship claim on other grounds. 
KAMDEM-OUAFFO v. PEPSICO INC. 7

entire Agreement,” id. at *8 (internal quotation marks 

and citation omitted), because under New York law, “[a] 

party’s failure to read or understand a contract that it 

signs does not relieve it of its obligation to be bound by 

the contract,” id. (quoting In re Lehman Brothers Inc., 478 

B.R. 570, 587 n.19 (S.D.N.Y. 2012), aff'd sub nom. In re 

Lehman Bros. Holdings Inc., 761 F.3d 303 (2d Cir. 2014)). 

Second, the district court rejected Dr. Kamdem-Ouaffo’s 

argument that the contract should be voided or found 

unenforceable based on an alleged breach of the implied 

covenant of good faith and fair dealing by PepsiCo because under New York law, “only parties to a contract can 

be held liable for breach of the implied covenant of good 

faith and fair dealing.” Id. at *9 (citing, e.g., Am.–

European Art Assocs., Inc. v. Trend Galleries, Inc., 227 

A.D.2d 170, 171 (N.Y. App. Div. 1996)). Third, the district 

court rejected Dr. Kamdem-Ouaffo’s claim that there was 

no definiteness as to his consideration because it found 

that the $82,142 that he received was the consideration 

promised in Attachment B. Id. at *9. Finally, the district 

court rejected Dr. Kamdem-Ouaffo’s charge that PepsiCo 

committed fraud because his complaint failed to meet the 

heightened pleading standard for fraud claims. Id. at *10. 

We discern no error in the district court’s dismissal of the 

unenforceable contract claim on these grounds. 

We also affirm the district court’s dismissal of Dr. 

Kamdem-Ouaffo’s unjust enrichment claim. “An unjust 

enrichment claim is rooted in the equitable principle that 

a person shall not be allowed to enrich himself unjustly at 

the expense of another. Thus, in order to adequately plead 

such a claim, the plaintiff must allege that (1) the other 

party was enriched, (2) at that party’s expense, and (3) 

that it is against equity and good conscience to permit the 

other party to retain what is sought to be recovered.” 

Georgia Malone & Co. v. Rieder, 973 N.E.2d 743, 746 

(N.Y. 2012) (internal quotation marks and citations 

omitted). Dr. Kamdem-Ouaffo alleges in his Second 

Amended Complaint that “[PepsiCo] ha[s] been unjustly 
8 KAMDEM-OUAFFO v. PEPSICO INC. 

enriched at the detriment of the Plaintiff” because PepsiCo “claimed and patented the Plaintiff’s inventions 

worldwide for [its] own benefit” even though Attachment 

B was “invalid and/or unenforceable,” PepsiCo never 

reimbursed him for commute-related expenses, and never 

offered him any relocation or alternative living arrangement closer to PepsiCo’s facilities. App. tab. 14 at ¶¶ 245–

47, 249, 251. Dr. Kamdem-Ouaffo failed to plead a viable 

claim of unjust enrichment against PepsiCo. And because 

“a claim of constructive trust under New York law requires [p]laintiffs to show unjust enrichment,” In re 

Lehman Bros. Holdings Inc., 541 B.R. at 581, we also 

affirm the district court’s dismissal of Dr. KamdemOuaffo’s constructive trust claim. 

III 

We next address Dr. Kamdem-Ouaffo’s correction of 

inventorship claims. First, the district court did not err in 

holding that “Plaintiff cannot bring a correction of inventorship claim for any of the referenced patent applications.” Kamdem-Ouaffo, 2016 WL 369684, at *11. We 

have held “that § 116 does not provide a private right of 

action to challenge inventorship of a pending patent 

application. Once a patent issues, however, 35 U.S.C. 

§ 256 provides a private right of action to challenge inventorship.” HIF Bio, Inc. v. Yung Shin Pharm. Indus. Co., 

600 F.3d 1347, 1354 (Fed. Cir. 2010).5 

The district court also held that “Plaintiff lacks standing to make [] a claim [challenging inventorship of the 

issued ’637 patent] because, pursuant to [Attachment B], 

he assigned his patent rights to PepsiCo. . . . Further-

 

5 To the extent Dr. Kamdem-Ouaffo seeks correction of inventorship of international patents or patent 

applications, the district court lacks jurisdiction to entertain those claims. See, e.g., Voda v. Cordis Corp., 476 F.3d 

887, 900 (Fed. Cir. 2007). 
KAMDEM-OUAFFO v. PEPSICO INC. 9

more, Plaintiff’s conclusory allegations of ‘damages in 

terms of the loss of the ownership, inventorship, recognition, and the honor for his valuable, marketable, confidential, patentable and now patented intellectual property’ do 

not suffice, . . . as [Attachment B] unmistakably leaves 

Plaintiff with none of the requisite interests for standing.” 

Kamdem-Ouaffo, 2016 WL 369684, at *12 (quoting the 

Second Amended Complaint). To the extent that the 

district court relied on the proposition that a “plaintiff 

lack[s] standing to pursue a patent infringement claim 

where he [has] assigned away all his patent rights and 

thus [does] not have an ownership interest in the patents,” id. (citing Jim Arnold Corp. v. Hydrotech Sys., Inc., 

109 F.3d 1567, 1572 (Fed. Cir. 1997)), that holding was 

mistaken. 

As Dr. Kamdem-Ouaffo points out, we have held that 

“concrete and particularized reputational injury can give 

rise to Article III standing. . . . For example, if the claimed 

inventor can show that being named as an inventor on a 

patent would affect his employment, the alleged reputational injury likely has an economic component sufficient 

to demonstrate Article III standing.” Shukh v. Seagate 

Tech., LLC, 803 F.3d 659, 663 (Fed. Cir. 2015) (emphasis 

added), cert. denied, No. 15-1285, 2016 WL 1558902 (U.S. 

June 27, 2016). That is, concrete and particularized 

reputational injury can support Article III standing for a 

§ 256 claim even where an employee has assigned all of 

his interest in an invention and cannot pursue an infringement action. See Shukh, 803 F.3d at 661. But reputational injury alone is not sufficient; rather, it must be 

tied to economic consequences, such as loss of employment 

prospects. Id. at 663 (“Dr. Shukh presented evidence from 

which a trier of fact could conclude that these reputational harms had economic consequences—namely, that [he] 

was unable to find employment after he was terminated 

from Seagate.”); id. at 667 (“Dr. Shukh’s inability to 

obtain employment is a concrete and particularized 
10 KAMDEM-OUAFFO v. PEPSICO INC. 

financial harm that suffices to create Article III standing.”). 

We affirm the district court’s holding that Dr. 

Kamdem-Ouaffo lacked standing for his correction of 

inventorship claim because Dr. Kamdem-Ouaffo’s sole 

claim of injury, in his Second Amended Complaint, stemming from his alleged loss of inventorship, was a bare 

assertion that “Plaintiff sustains and/or might sustain

damages in terms of the loss of the ownership, inventorship, recognition, and the honor for his . . . Intellectual 

Property.” App. tab. 15 at ¶ 304 (emphasis added). An 

allegation that one “sustains and/or might sustain” injury, 

including reputational injury, is not “concrete and particularized,” but rather “conjectural or hypothetical.” Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “Where, as 

here, a case is at the pleading stage, the plaintiff must 

‘clearly . . . allege facts demonstrating’ each element [of 

standing].” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 

(2016) (citation omitted). Dr. Kamdem-Ouaffo did not 

clearly allege facts demonstrating actual harm to his 

reputation and that his alleged reputational harm had an 

economic component such as loss of employment.6 See 

Shukh, 803 F.3d at 666–67. 

IV

Third, we address Dr. Kamdem-Ouaffo’s defamation 

claim. The district court found that “[a]ccording to Plaintiff, ‘[t]he said written defamatory statements were made 

[by PepsiCo Defendants] to the United States government 

in a document dated 12/18/2009.’” Kamdem-Ouaffo, 2016 

WL 369684, at *12. The New York statute of limitations 

provides that an action for defamation be commenced 

 

6 To be sure, Dr. Kamdem-Ouaffo argues he suffered economic harm from his termination, but these 

allegations are distinct from economic damage from not 

being listed as an inventor on the patent. 
KAMDEM-OUAFFO v. PEPSICO INC. 11

within one year. N.Y. C.P.L.R. § 215(3). New York follows 

“the single publication rule, which states that a cause of 

action for defamation accrues on the date the offending 

material is first published.” Nussenzweig v. diCorcia, 878 

N.E.2d 589, 590 (N.Y. 2007). Thus, the district court did 

not err in holding that Dr. Kamdem-Ouaffo’s defamation 

claim is time-barred. We do not reach the district court’s 

conclusion that the defamation action fails to state a 

claim. 

V 

Finally, Dr. Kamdem-Ouaffo raises several new 

arguments for the first time on appeal. See, e.g., Appellant’s Br. at 15 (arguing that the fees paid to Subex 

“criminally exceeded statutory limits for Employment 

Agency Fees); id. at 18 (arguing that “there remains a 

question as to whether Subex . . . was a lawful New York 

entity through which PepsiCo may assert and enforce 

itself as sole assignee and owner of Plaintiff-Appellant’s 

patented Intellectual Property . . . .”). We decline to 

address Dr. Kamdem-Ouaffo’s arguments made for the 

first time on appeal. Gant v. United States, 417 F.3d 1328, 

1332 (Fed. Cir. 2005) (“Arguments not made in the court 

or tribunal whose order is under review are normally 

considered waived.”). 

AFFIRMED

COSTS

No costs.