Johnney R. Weaver v. Robert E. Houchin

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHNNEY R. WEAVER,
Plaintiff-Appellant,
v.
ROBERT E. HOUCHIN,
Defendant-Appellee.
__________________________
2011-1327
__________________________
Appeal from the United States District Court for the
Northern District of Texas in case no. 09-CV-0187, Judge
John H. McBryde.
___________________________
Decided: March 7, 2012
___________________________
ANDREA L. NATION , The Nation Law Firm, of Dallas,
Texas, for plaintiff-appellant.
ANDREW D. SIMS , Harris, Finley & Bogle, P.C., of Fort
Worth, Texas, for defendant-appellee. With him on the
brief were RUSSELL R. B ARTON and TENNESSEE W.
WALKER.
__________________________

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WEAVER v. HOUCHIN 2
Before LOURIE, BRYSON and M OORE, Circuit Judges.
PER C URIAM.
Mr. Johnney R. Weaver appeals the summary judg-
ment of the district court that he failed to prove he is a co-
inventor of U.S. Patent No. 7,316,614 (’614 patent).
Because Mr. Weaver fails to identify any legally sufficient
corroborating evidence to support his testimony that he
contributed to the invention of the ’614 patent, we affirm
the district court’s grant of summary judgment.
BACKGROUND
The ’614 patent is generally directed to a method and
apparatus for conducting a sweepstakes. The patent
originally issued listing five inventors, including Mr.
Weaver. Soon after the patent issued, a certificate of
correction changed the listed inventors to just Robert
Houchin, the defendant-appellee in this case. Appellee
App. 197. Approximately a year later, the delisted inven-
tors filed a complaint seeking a declaratory judgment that
they were “co-inventors and co-owners” of the ’614 patent,
along with other claims. Id. at 49.
At a pre-trial conference, the court ordered the plain-
tiffs to file a document that described each plaintiff’s
contribution to conception of the invention and identified
evidence supporting their contributions to the ’614 patent.
The plaintiffs initially filed a description of their individ-
ual contributions and generally identified their support-
ing evidence. Id. at 197. They later supplemented this
disclosure with a document further detailing their inven-
torship contentions. Id. at 184. Mr. Weaver’s inventor-
ship contentions listed the following evidence supporting
his alleged inventorship: (1) “Hello Money Sweepstakes”;
(2) “Testimony of Morris, Olmstead, Weaver”; (3) “Photo
Money Talk game equipment”; (4) “Testimony Morris,

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WEAVER v. HOUCHIN 3
Dietz[,] Vaudrin, Weaver.” Id. at 203. Mark Olmstead,
Earl Morris, and Michael Dietz were Mr. Weaver’s co-
plaintiffs in this litigation, and each claimed to be co-
inventors of the ’614 patent. Soon after submitting their
inventorship contentions and supporting evidence, Mr.
Olmstead, Mr. Morris and Mr. Dietz dismissed their
claims with prejudice.
Mr. Houchin filed a response to Mr. Weaver’s inven-
torship contentions, arguing “it is apparent that [Mr.
Weaver] has no independent, credible proof of co-
inventorship, and his co-inventorship claim is ripe for
adjudication.” Id. at 220. Mr. Weaver replied, agreeing
that “the facts are in sufficient agreement that this mat-
ter should be determine[d] by the Court on the pleading,
depositions, documents and other items filed in this
action.” Id. at 285. The court construed Mr. Houchin’s
filing as a motion for summary judgment, id. at 2, and
concluded “that plaintiff has failed to adduce sufficient
independent, corroborating evidence to support his claims
of co-inventorship,” id. at 3.
Mr. Weaver initially appealed to the Fifth Circuit,
which subsequently transferred the appeal to this court.
We have jurisdiction pursuant to 28 U.S.C. § 1295.
D ISCUSSION
We review the trial court’s grant of summary judg-
ment de novo. Billups-Rothenberg, Inc. v. Associated Reg’l
& Univ. Pathologists, Inc., 642 F.3d 1031, 1036 (Fed. Cir.
2011). Summary judgment is appropriate when, drawing
all reasonable inferences in favor of the non-movant,
there is no genuine issue as to any material fact. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.
R. Civ. P. 56(c). Inventorship is a question of law, which
we review without deference. Ethicon, Inc. v. U.S. Surgi-
cal Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998). “To show

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WEAVER v. HOUCHIN 4
co-inventorship . . . the alleged co-inventor or co-inventors
must prove their contribution to the conception of the
claims by clear and convincing evidence.” Id. at 1461. An
alleged co-inventor’s testimony standing alone cannot rise
to the level of clear and convincing proof of inventorship.
Id. Instead, “an alleged co-inventor must supply evidence
to corroborate his testimony.” Id. Whether testimony is
sufficiently corroborated is evaluated under a “rule of
reason analysis,” which evaluates all pertinent evidence
to make a determination of the credibility of the alleged
inventor’s story. Id. Typically, the “testimony of one co-
inventor cannot be used to help corroborate the testimony
of another.” Medichem, S.A. v. Rolabo, S.L., 437 F.3d
1157, 1171 (Fed. Cir. 2007).
On appeal, Mr. Weaver claims that the district court
incorrectly granted summary judgment for three reasons.
First, Mr. Weaver claims that “one troublesome aspect” of
the decision is “that the court appears not to credit
Weaver’s contribution . . . based as it was only on the
testimony of Weaver and the other plaintiffs.” Appellant
Br. 20. Mr. Weaver then argues that “it is doubtful that
the issue of corroboration is amenable to summary judg-
ment,” since our “rule of reason” analysis involves a
credibility determination “more appropriate for the fact-
finder than the court in a summary judgment analysis.”
Appellant Br. 20-23. While Mr. Weaver concedes that
testimony from alleged co-inventors, Mr. Morris, Mr.
Olmstead, and Mr. Dietz, cannot be used to corroborate
his own testimony, he nevertheless “submits that all of
the evidence beyond co-inventor corroboration was fair
game.” Appellant Br. 23. He then identifies a large
number of “conceptions and ideas contributed by the
parties, other than Weaver.” Id. n.2.
Mr. Weaver’s arguments misunderstand the basis for
the trial court’s judgment: without corroboration, the oral

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WEAVER v. HOUCHIN 5
testimony cited by Mr. Weaver is simply insufficient as a
matter of law to meet the clear and convincing standard
of proof required to establish co-inventorship. “Through-
out the history of the determination of patent rights, oral
testimony by an alleged inventor . . . is regarded with
skepticism, and as a result, such inventor testimony must
be supported by some type of corroborating evidence.”
Price v. Symsek, 988 F.2d 1187, 1194 (Fed. Cir. 1993).
While “[c]redibility concerns undergird the corroboration
requirement,” its ultimate purpose “is to prevent fraud.”
Medichem, 437 F.3d at 1170. The requirement that
evidence be corroborated thus “provides an additional
safeguard against courts being deceived by inventors who
may be tempted to mischaracterize the events of the past
through their testimony.” Id. While it is true that the
corroboration requirement seeks to allay credibility
concerns, Mr. Weaver is wrong that this makes corrobora-
tion non-amenable to summary judgment.
The evidence proffered by Mr. Weaver in this case
was insufficient as a matter of law to corroborate Mr.
Weaver’s testimony and prove, by clear and convincing
evidence, that he was a co-inventor of the ’614 patent.
Mr. Weaver, along with his co-plaintiffs, submitted his
evidence of co-inventorship to the court in the “Plaintiffs’
Description of Each Plaintiff’s Contribution to the Patent
and Supporting Evidence” (Inventorship Description).
Most of the evidence, however, is testimony from Mr.
Weaver and his alleged co-inventors, which is legally
insufficient proof of corroboration. Medichem, 437 F.3d at
1171.
The remaining cited evidence is the “Hello Money
Sweepstakes,” the “Photo Money Talk game equipment,”
and testimony from “Vaudrin.” Appellee App. 203. This
evidence does not help Mr. Weaver’s corroboration prob-
lem. The “Hello Money” manual cited in the Inventorship

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WEAVER v. HOUCHIN 6
Description was apparently created by Mr. Morris and
Mr. Olmstead, not Mr. Weaver, so it is unclear why this
manual would support Mr. Weaver’s inventorship allega-
tions. Likewise, there is no explanation how the undated
photograph of the “Money Talk” system, id. at 268, cor-
roborates Mr. Weaver’s testimony. See Ethicon, 135 F.3d
at 1461 (“contemporaneous documents prepared by a
putative inventor serve to corroborate an inventor’s
testimony”). Moreover, Mr. Weaver testified that “[t]here
may be one thing in [the patent] that I kind of really
contributed to,” namely “a credit card style card, and that
was kind of my suggestion.” Appellee App. 274. It is
unclear – and Mr. Weaver does not explain – how the
photograph of the “Money Talk” system pictured supports
his testimony that he conceived of using a credit card
style card in the invention.
Finally, Mr. Weaver cites the testimony of Mr.
Vaudrin as supporting corroborative evidence. Although
Mr. Weaver testified that he talked to certain persons
about his contribution to the invention, Mr. Vaudrin was
not one of them. Id. at 275. He also testified that Mr.
Vaudrin did not, to his knowledge, work on the invention,
id. at 276, and that only Mr. Houchin, Mr. Morris, and
Mr. Olmstead were present for the meetings where he
helped conceive of his portion of the invention, id. at 275.
Mr. Weaver does not dispute the district court’s conclu-
sion that Mr. Vaudin did not have “any personal knowl-
edge of plaintiff’s alleged contributions to the ’614 patent”
that allowed him to corroborate Mr. Weaver’s testimony.
Id. at 9. Without personal knowledge of Mr. Weaver’s
contribution, Mr. Vaudin’s testimony is insufficient cor-
roboration to prove by clear and convincing evidence that
Mr. Weaver was a co-inventor of the ’614 patent.
Without legally sufficient corroboration of his testi-
mony, Mr. Weaver cannot establish that he should be a

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WEAVER v. HOUCHIN 7
co-inventor on the patent. Ethicon, 135 F.3d at 1461.
Even drawing all factual inferences in his favor, Mr.
Weaver still fails to identify sufficient corroborating
evidence to establish his inventorship by clear and con-
vincing evidence. As a result, the district court correctly
held that summary judgment was appropriate in this
case. We have considered Mr. Weaver’s additional argu-
ments on appeal and find them to be without merit.
AFFIRMED

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