# Golden v. United States

> United States Court of Federal Claims · March 29, 2018

URL: https://www.frixlaw.com/law-library/cases/4259647

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 29, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Susan G. Braden
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

fn riggi 3 .

FlLED
MAR 29 2018

U. S COURT OF
FEDERAL CLA||V|S

In the United States Court of Federal Claims

No. 13- 307C
Filed: March 29, 2018

****************$$*$$****$$*$$$$$****

LARRY GOLDEN,
Plaintiff, pro se,

v.

THE UNITED STATES,

Defendant.

%**%%****%%%&**%-X-*%*%**-l$-I~%€-J€-

*$**$******$***$$*******$************

Larry Golden, Greenvil]e, South Carolina, pro se.

Nicholas Jae-Ryoung-Kim, United States Department of Justice, Civil Division, Washington,

D.C., Counsel for the Govemment.

MEM()RANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART THE GOVERNMENT’S MOTION FOR PARTIAL DISMISSAL

BRADEN, ChiefJudge.

45 C.F.R. § 75.435(h) (Uniform
Administrative Requirements);

48 C.F.R. § 2.101(b) (Federal Acquisition
Regulations Defmitions);

28 U.S.C. §§ 1491(a) (Tucker Act
Jurisdiction), 1498(3.) (Patent
Infringement Jurisdiction), 1927
(Liability for Excessive Costs);

31 U.S.C. §§ 6303 (Using Procurement
Contracts), 6304 (Using Grant
Agreements), 6305 (Using
Cooperative Agreements);

35 U.S.C. §§ 102 (Novelty), 103
(Obviousness), 11 1(a),(b)
(Application for Patent), 120 (Benef`lt
of Earlier Filing Date), 251 (Reissue
of Defective Patents), 252 (Effect of
Reissue);

Manual of Patent Examining Procedure
(9th ed. 2015); and

Rule of the Unjted States Court of
Federal Claims 12(b)(1)
(Jurisdiction), 12(b)(6) (Failure to
State a Claim), 12(h)(3) (Lack of
Subject-Matter Jurisd_iction), 15(a)
(Amendments Before Trial), 41 (b)
(Dismissal of Actions), 56(€), (f)
(Summary Judgment).

To facilitate review of this Memorandum Opim'on And Order, the coul“£ has provided the
following outline.

I. RELEVANT FACTUAL BACKGROUND.
A. The Prosecution History Of The Relevant United States Patent Applications.
B. National Science Foundation Grants And Cooperative Agreements.
C. National Institutes Of Health Grants.

II. PROCEDURAL HISTORY.

III. STANDARD OF REVIEW.
A. Jurisdiction.
B. Stanclard Of Review For A Motion To Dismiss Under RCFC 12(b)(1).
C. Standard Of Review For A Motion To Dismiss Under RCFC 12(b)(6).
D. Standard Of Review For Pro Se Litigants.

IV. DISCUSSION.
A. Whether Certain Patent Infringement Allegations 111 The August 10, 2017 Fifth

Amended Complaint Should Be Dismissed Under RCFC 12(b)(1) And 12(`0)(6).

1. Patent Infringement Allegations 111 The August 10, 2017 Fifth Amendod
Complaint.

2. The Govemment’$ Argument.

3. Plaintiff’ 5 Response And Motion For Leave To Fiie A Motion For
Summary Judgment.

4. The Govemrnent’$ Reply And Opposition To Plaintiff’ s Motion For Leave
To File A Motion For Summary Judgment.

5. Plaintiff’ S Reply.

6. The Court’s Resolution.
a. Governing Precedent.
b. Patent Infringement Allegations Concemiug National Science

Foundation Gra.nts And Cooperative Agreements Must Be
Dismissed Under RCFC 12(b)(1).
i. Regarding National Science Foundation Grants.
ii. Regarding National Science Foundation Cooperative
Agreements.

c. Patent lnfringement Allegations Conceming National Institutes Of
Health Grants Must Be Dismissed Under RCFC 12(b)(1).

d. Patent lnfringement Allegations Conceming The Govemment’$
Alleged Use Of “Smartphones And Other Consumer Devices”
Must Be Dismissed Under RCFC 12(b)(1) And 12(b)(6).

V.

CONCLUSION.

Patent Infringement Allegations Concerning Broad Agency
Announcements Must Be Disrnissed Under RCFC 12(b)(6).
Patent Infringement Allegations Concerning The ’033 Patent Must
Be Dismissed Under RCFC 12(b)(1).

Patent lnfringement Allegations Concerning UniSSued Patent
App1ications And Pre~lssuance Use Or Manufacture Must Be
Dismissed Under RCFC 12(b)(1).

Patent lnfringement Allegations Concerning The ’761, ’280, And
’189 Patents Must Be Dismissed Under RCFC 12(b)(6).

I. RELEVANT FACTUAL BACKGROUN]).l
A. The Prosecution History Of The Relevant United States Patent Applications.

On April 5, 2006, Larry Golden filed U.S. Patent Application No. 11/397,118 (the “’ 1 18
Application”), entitled “Multi Sensor Detection And Lock Disabling System,” With the United
States Patent and Trademari)(6).

The Government argues that patent infringement allegations28 “

The Fifth Amended Complaint alleges the following with respect to the “LG Electronics
G5 Smartphone”:

Upon information and belief, the United States has infringed, and continues
to infringe, at least claim 22 of the ’439 Patent, and claims 18, 118, 12, 28, 25, 30,
22, and 20 of the ’990 Patent as a current manufacturer, consumer, and/or user of
the “LG Electronics G5 Smartphone”. Manufacture for the Government; 2008:
The “Cell-All” initiative rl`he [DHS-S&T] . . . , Cell-All aims “to equip your cell
phone with a sensor capable of detecting deadly chemicals”, says Stephen Dennis,
Cell-All’s program manager. [DHS-S&T] pursued cooperative agreements with
four cell phone manufacturers: Qualcomm, LG, Apple, and Samsung. Used by the
Government; 2016: Both the LG G5 and V10 smartphones can be used by the
[DOD]. The LG smartphones received a security certification from the iDlSA], as
well as a certification by the [NIAP]. Sensors will integrate with 261 million cell
phones now used in the U.S. [and l]everage billions of dollars spent each year in
sensor, carrier network[,] and cell phone development Multiple sensors network
for chemical profiling; Cell-All aims “to equip your cell phone with a sensor
capable of detecting deadly chemicals”, says Stephen Dennis, Cell-All’s program
manager. Multiple sensor units per phone are possible Stephen Dennis envisions
a chemical sensor in every cell phone in every pocket, purse, or belt holster.

AS a result of contracts, agreements, and procurements with various
Government Agencies (1111 49-78), the [DHS], the [DOD], and LG Electronics for
the manufacture development, commercialization, and/or use of the
communication/monitoring device “LG Electronics G5 Smartphone”, the United
States has used, authorized the use, and manufactured, without license or legal
right, Plaintiff’ s inventions described in and covered by the ’439, and ’990 Patents.

8/ l()/ 17 Am. Compl. 1111 96-97 (bold in original).

28 The paragraphs in the Fifth Amended Complaint that include patent infringement
allegations “relating generally to smartphones and other consumer devices” are: 1111 96»97,
101-02, 106-07, 111-12, 116-17, 121-»22, 126-27, 131-32, 136-37, 141W42, 14647, and
151-52. These paragraphs are highlighted in orange in the attached Court Exhibit B.

32

relating generally to
smartphones and other consumer devices” should be dismissed under RCFC l2(b)(l), because the
Fifth Amended Complaint “fails to sufficiently allege actual ‘use’ by the [G]overnrnent of the
various combinations of consumer devices, nor would the [G]overnrnent’s use be plausible.”
10/20/17 Gov’t Mot. at 17.

The Fifth Amended Complaint includes patent infringement allegations concerning the
Government’s alleged “use” and “manufacture” of other “smartphones [and] consumer devices,”
each of which repeats the text of 28 U.S.C. § 1498(a) in conclusively alleging that, c‘[als a
result of contracts, agreements, and procurements with various Government Agencies
(1111 49~78) . . . the United States has used, authorized the use, and manufactured . . . Plaintiff’s
inventions[.]”’ 8/10/17Am.Comp1.111197,102,107, 112, ll7, 122, 127, 132,137,142, 147,152.
To support this allegation, the Fifth Amended Complaint repeatedly cites to 1111 49-78 of the Fifth
Amended Complaint. These paragraphs describe the Government’s intent to °‘allow” or “approve”
the “use” of various “smartphones and other consumer devices,” e.g., “the iPhone 50 and SS.”
8/10/17 Am. Compl. 1l 75 . Por example, 11 53 of the Fifth Amended Complaint states:

2012: “The [DOD] expects in coming weeks to grant two separate security
approvals for Samsung’s Galaxy smartphones, along with iPhones and iPads
running Apple’s latest operating system-~moves that would boost the number of
U.S. government agencies allowed to use those devices. An approval by the
Pentagon is considered as the highest standard[] in security.”

8/10/l7 Am. Compl. 11 53 (emphasis added).
Similarly, 11 72 of the Fifth Amended Complaint states:

20l4: “By opening its networks to Samsung and Apple devices, [DISA] . . . intends
to broaden the variety of mobile computers that troops and civilian [DOD]
employees can use in the field, on bases, in offices and elsewhere to receive and
send information and work almost anywhere at any time.”

8/10/17 Am. Compl. 1172 (emphasis added).

'l`he Fifth Amended Complaint, however, does not allege that the Government’s intent to
“allow” or “approve” the use of “smartphones and other consumer devices” infringes Plaintiff s
patents. lnstead, the Fifth Amended Complaint alleges that the Govemment’ s use of these devices
fn combination with other “devices” or “programs,” e.g., the “‘Cell-All’ initiative,” infringes
Plaintiff" s patents. 8/10/17 Am. Compl. 1111 96~97. No factual allegations, however, support
assuming that the Government used or authorized the use of these other “devices” or “programs”
to infringe Plaintiff’ s patents.

For example, although the Fifth Amended Complaint alleges that the “LG Electronics G5
Smartphone . . . can be used” by the Government, such an allegation does not support the
conclusion that the Government used or authorized the use of these devices to run the “‘Cell-All’
initiative.” 8/10/17 Am. Compl. 1111 96-97. Nor do such allegations imply that the Govemment’s
use of the “LG Electronics G5 Smartphone” infringes Plaintiff s patents, since the Government
may simply use these devices to make calls. Without supporting factual allegations, however, the
court cannot assume infringing use or manufacture by the Government See Nortor.¢, 266 U.S. at
515 (“lt is quite true that the jurisdiction of a federal court must affirmatively and distinctly appear
and cannot be helped by presumptions or by argumentative inferences drawn from the
pleadings.”); see also SB CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRACTICE &
PROCEDURE § 1350 (3d ed. 2004) (“[A]rgumentative (as opposed to reasonable) inferences

33

favorable to the pleader will not be drawn and conclusory allegations or conclusions of law will
not be credited.”). ln sum, although the factual allegations of the Fifth Amended Complaint may
support a conclusion that the Government “allowed” or “approved” the “use” of various
“smartphones and other consumer devices,” they do not support the conclusion that the
Government used or authorized the use of these devices in an infringing manner.

For these reasons, the court has determined that the patent infringement allegations
contained in 1111 96~97, 101-02, 106-07, 111-12, 1l6-l7, 121-22, 126-27, 131-32, 136»»~37,
141-42, 146-47, and 151~52 of the August 10, 2017 Fifth Amended Complaint failed to satisfy
Plaintiff’s burden to establish jurisdiction under 28 U.S.C. § l498(a). Accordingly, these
paragraphs of the Fifth Amended Complaint must be dismissed under RCFC 12(b)(1).

ln the alternative, the Government argues that the same allegations should be dismissed
under RCFC 12(b)(6), for “improperly alleg[ing] infringement by or for the [G]overnment in
irreconcilably vague and omnibus fashion by repeatedly citing ‘contracts, agreements, and
procurements with various Government Agencies.”’ 10/20/ 17 Gov’t Mot. at 17.

The Govemment’s position is correct, because the Fifth Amended Complaint does not
contain factual allegations supporting that, “[a]s a result of contracts agreements and
procurements with various Government Agencies . . . the United States has used, authorized the
use, and manufactured . . . Plaintiff’s inventions[.j” 8/10/ 17 Am. Compl. 11 97 (ernphasis added).
The Fifth Amended Complaint fails to identify the “contracts, agreements, and procurements” at
issue. Without more, the Fifth Amended Complaint has not met the requirements of Twombly and
labal. Nor does the Fifth Amended Complaint provide anything other than conclusory allegations
that the Government used or authorized the use of “smartphones and other consumer devices” in
a manner that infringes Plaintiff’s patents Such “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, [however,] do not suffice.” Iql)al, 556 U.S.
at 678; see also Siou.x Honey Ass’ri, 672 F.3d at 1062 (holding that a complaint c‘require[s] more
than labels and conclusions”).

For these reasons, the court has determined that even if the August 10, 2017 Fifth Amended
Complaint established jurisdiction as to the patent infringement allegations contained in 1111 96~97,
101-02, 106407, 111~12, 116~17, 121~»22, 126-27, 131-32, 136-37, 141-42, 146-47, and
151-52 of the Fifth Amended Complaint, the allegations contained therein failed to state a claim
upon which relief may be granted and must be dismissed under RCFC 12(b)(6).

e. Patent Infringement Allegations Concerning Broad Agency
Announcements Must Be Dismissed Under RCFC 12(b)(6).

The Government argues that patent infringement allegations29 concerning a DNDO BAA
should be dismissed under RCFC 12(b)(6), because the Fifth Amended Complaint “fails to

29 The paragraphs in the Fifth Amended Complaint that include patent infringement
allegations conceming the DNDO BAA are: 1111 161$7. These paragraphs are highlighted in red
in the attached Court Exhibit B.

34

plausibly allege that the Government either used or manufactured any technologies described in
the BAA.” 10/20/17 Gov’t Mot. at 22.

In relevant part, the Fifth Amended Complaint alleges:

Upon information and belief, the United States has infringed, and continues
to infringe, at least claims 1, 2, and 4 of the ’497 Patent, claims 34, and 37 of the
’752 Patent, claims 13, and 14 ofthe ’439 Patent, and claims 119, 29, 18, 118, 12,
28, 25, 20, 124, 32, and 30 of the ’990 Patent as a current manufacturer, consumer,
and/or user of the l”x2” Detection Device (DD) Samsung Galaxy s6 Smartphone;
2”X2” Detection Device (DD) Samsung Galaxy s6 Smartphone; NetSZ SmartShield
G3 00 Radiation Detector Samsung Galaxy s6 Smartphone; NetSZ SmartShield
G5 00 Radiation Detector Samsung Galaxy s6 Smartphone; and the Passport
Systems Base Control Unit (BCV) “TOUGHBOOK 31” Panasonic Laptop:

2”X2” Detection Device (DD) Samsung Galaxy s6 Smartphone: In response
to the [DNDO’s] BAA 09~102 Passport Systems, lnc. of Billerica, MA has
developed a system of networked portable spectroscopic radiation detectors to
improve the detection, localization, and identification of radiological threats.

=l= >l= =I=

NetSZ SmartShield G500 Radiation Detector Samsung Galaxy s6
Smartphone: Passport Systems Inc. G500 Radiation Detector alarms When radiation
levels are detected; used as a standalone device or as part of a network; is the same
size, form factor and Weight as a smartphone and easily added to the belt of safety
personnel; is paired With a smartphone Via Bluetooth, and automatically joins a _
SmartShield Networl1= =!=

As a result of contracts With the [DNDO], Passport Systems, lnc., Panasonic
Corporation, and the Samsung Group for the development and commercialization
of the l”XZ” Detection Device (DD) Samsung Galaxy s6 Smartphone; 2”x2”
Detection Device (DD) Samsung Galaxy s6 Smartphone; NetSZ SmartShield G300
Radiation Detector Samsung Galaxy s6 Smartphone; NetSZ SmartShield G500
Radiation Detector Samsung Galaxy s6 Smartphone; and the Passport Systems '
Base Control Unit (BCU) “TOUGHBOOK 31” Panasonic Laptop the United States j
has used, authorized the use, and manufactured, without license or legal right, §
Plaintiff’s inventions described in and covered by the ’497, ’439, ’752, and ’990 ‘
Patents. l

8/10/17 Am. Compl. 1111 161_62, 165, 167.

But, the conclusion tha , “[a]s a result of contracts With the DNDO . . . the United States
has used, authorized the use, and manufactured . . . Plaintiff’s inventions,”’ is not plausibly
supported by factual allegations in the Fifth Amended Complaint. 8/10/17 Am. Compl. 11 167

35

(ernphasis added). Indeed, the Fifth Amended Complaint fails to identify a single “contract” With
the DNDO. lnstead, it alleges only that the DNDO issued a BAA; a BAA, however, is not a
“contract.” See 48 C.F.R. § 2.101(b) (defining a “BAA” as “a general announcement of an
agency’s research interest including criteria for selecting proposals and soliciting the participation
of all offerors capable of satisfying the Government’s needs”). Again, without more, the Fifth
Amended Complaint has not met the requirements of Twombly and Iql)al. And, conclusory
allegations that the Government used or authorized the use of the “Sarnsung Galaxy s6
Smartphone” in a manner that infringes Plaintiff’s patents are likewise insufficient, as such
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Sionx Honey Ass ’n, 672 F.3d at 1062
(holding that a complaint “require[s] more than labels and conclusions”).

For these reasons, the court has determined that the patent infringement allegations
contained in 1111 161~67 of the August 10, 2017 Fifth Amended Complaint must be dismissed under
RCFC 12(1))(6).

f. Patent Infringement Allegations Concerning The ’033 Patent
Must Be Disrnissed Under RCFC 12(b)(1).

The Government argues that patent infringement allegations concerning the ’033 Patent
should be dismissed under RCFC l?,(b)(l), because “this patent Was surrendered When it was
reissued as [the ’891 Patent] and [the ’990 Patent].” 10/20/ 17 Gov’t Mot. at 22,

An application for reissue of a patent constitutes an offer to surrender the patent. See 35
U.S.C. § 251(a) (“[T]he Director shall, on the surrender of such patent and the payment of the fee
required by law, reissue the patent for the invention disclosed in the original patent[.]”).
“The surrender of the original patent . . . take[s] effect upon the issue of the reissued patent.” 35
U.S.C. § 252. Therefore, as a matter of law, “[a]n original patent cannot be infringed once a reissue
patent has issued, for the original patent is surrendered . . . [and t]he original claims are dead.”
Seattle Box Co., Inc. v. Indnst Cratz`ng & Packing, Inc., 731 F.2d 818, 827 (Fed. Cir. 1984).

In this case, on two occasions, Plaintiff applied for reissuance of the ’033 Patent via the
’837 Application and the ’853 Application, thereby offering to surrender the ’033 Patent in
accordance With 35 U.S.C. § 251(a). 2/12/ 16 Am. Compl. Ex. G, H. Thereafter, the USPTO
issued both of these reissue applications, as the ’89l Patent and the ’990 Patent, respectively, on
January 1, 2013 and February 12, 2013. 2/12/16 Am. Compl. EX. G, H. As such, the ’033 Patent
Was surrendered as of January 1, 2013, i.e., the earliest reissue date. See 35 U.S.C. § 252 (“The
surrender of the original patent . . . take[s] effect upon the issue of the reissued patent.”). Therefore,
the court does not have jurisdiction to adjudicate patent infringement allegations concerning
the ’033 Patent, because the ’033 Patent is no longer a “patent of the United States.” See 35
U.S.C. §§ 251(a), 252; see also 28 U.S.C. § 1498(a) (requiring “an invention described in and
covered by a patent of the United States”).

36

For these reasons, the court has determined that patent infringement allegations of the
August 10, 2017 Fifth Amended Complaint concerning the ’033 Patent30 failed to satisfy Plaintiff’ s
burden to establish jurisdiction under 28 U.S.C. § 1498(a). Accordingly, these allegations of the
Fifth Amended Complaint must be dismissed under RCFC 12(b)(1).

g. Patent Infringement Allegations Concerning Unissued Patent
Applications And Pre-Issuance Use Or Manufacture Must Be
Dismissed Under RCFC 12(b)(1).

Fl`he Government argues that patent infringement allegations concerning the ’839
Application and pre-issuance use or manufacture of the ’439 Patent should be dismissed under
RCFC 12(b)(1). 10/20/ 17 Gov’t Mot. at 23.

The ’839 Application has not issued, nevertheless the Fifth Amended Complaint alleges
that the Government “infringed, and continues to infringe” claims of the ’839 Application. 8/10/17
Am. Compl. ll 91. ln addition, the ’439 Patent issued on March 7, 2017, but the Fifth Amended
Complaint alleges infringement of the ’439 Patent, based on Government “progranis” that were
cancelled in April 2014, almost three years prior to issuance of the ’439 Patent. Compare 8/10/17
Arn. Compl. 1111 315-"16, with 10/20/ 17 Gov’t Mot. Ex. 22 (a June 10, 2014 United States
Government Accountability Office Report, explaining the DHS’s decision to cancel the
“BioWatch Gen~3” program in April 2014). In addition, the Fifth Amended Complaint alleges
infringement of the ’439 Patent, based on NSF grants that expired prior to issuance of the ’439
Patent. Compare 8/10/ 17 Am. Compl. 1111 184_85, 199-200, 260461, 275-76, 280-81, 295~96,
305-06, with 10/20/17 Gov’t Mot. EX. 6-8, 10, 12.

The court’s jurisdiction under 28 U.S.C. § 1498(a) is limited to allegations “against the
[G]overnment arising out of post~issuance [G]overnment use [or manufacturej of an invention.”
Hornback v. United States, 601 F.3d 1382, 1386 (Fed. Cir. 2010) (“"l`he language of section
1498(a) is mandatory, and therefore grants the [United States] Court of F ederal Claims exclusive
jurisdiction to hear all claims against the [G]overnrnent arising out of post-issuance [G]overnment
use of an invention.”).

For these reasons, the court has determined that patent infringement allegations of the
August 10, 2017 Fifth Amended Complaint concerning the ’839 Application31 and pre-issuance

30 Infringement of the ’033 Patent is alleged in jill 91-92 of the August 10, 2017 Fifth
Amended Complaint, the relevant portions of which the court has highlighted in purple in the
attached Court EXhibit B. These paragraphs, however, contain patent infringement allegations
concerning other patents and therefore are dismissed to the extent they concern the ’033 Patent.

31 Infringement of the ’839 Application is alleged in 1111 91-92 of the August 10, 2017 Fifth
Amended Complaint, the relevant portions of which the court also has highlighted in purple in the
attached Court Exhibit B. These paragraphs, however, contain patent infringement allegations
concerning other patents and therefore are dismissed to the extent they concern the ’839
Application.

37

use or manufacture of the ’439 Patent32 failed to satisfy Plaintiff’ s burden to establish jurisdiction
under 28 U.S.C. § l498(a). Accordingly, these allegations of the Fifth Amended Complaint must

be dismissed under RCFC 12(b)(l).

h. Patent Infringement Allegations Concerning The ’761, ’280,
And ’189 Patents Must Be Dismissed Under RCFC 12(b)(6).

Finally, the Government argues that patent infringement allegations concerning the ’761,
’280, and ’189 Patents should be dismissed under RCFC 12(b)(6), because the Fifth Amended
Complaint “alleges no infringement of any claims of these patents.” 10/20/ 17 Gov’t Mot. at 23.

With regard to the ’761, ’280, and ’189 Patents, the Fifth Amended Complaint alleges:

Upon information and belief, the United States has infringed, and continues
to infringe, . . . Plaintiff’s 'l`angible Patented Claimed Inventions of . . . [the ’761,

’280, and ’189 Patents.]

=l= =ll=

As a result of contracts, agreements, procurements, and grants, for the
development and commercialization of Plaintiff’s tangible patented claimed
inventions, the United States . . . has used, authorized the use, manufactured
and developed, without license or legal right, or authorization and consent,
Plaintiff’ s tangible patented claimed inventions as described in and covered by the
Plaintiff’s . . . ’761, ’280, . . . [and] ’189 . . . [P]atents.

8/10/17 Am. Compl. 1111 9l~»92.

To survive a motion to dismiss under RCFC 12(b)(6), “[t]here must be some allegation of
specific services or products of the defendants which are being accused.” Addicfion and
Detoxificarion Inst. L.L_C. v. Carpcnfer, 620 F. App’x 934, 937 (Fed. Cir. 2015). The Fifth
Amended Complaint, however, does not contain any allegation about how the ’761, ’280, and ’189
Patents Were infringed and by What action of the Government

32 Infringement of the ’439 Patent is alleged in 1111 91-92, 96-97, 101-02, 106-07, 111-12,
116-17, 121-22, 126~27, 131~32, 136~37, 141#42, 146»47, 151-52, 156~57, 161*67, 171~72,
176-80, 184-85, 189-90, 194-95, 199_200, 204-05, 209»10, 214-»15, 2l9m20, 224»26, 230-31,
235~36, 240~41, 245-46, 250~51, 255-56, 260-61, 265-66, 270-71, 275-76, 280-81, 285-86,
290_91, 295_96, 300-01, 305~06, 3l0~11, 315~16, 320~21, 325~26, 330-31, 335~36, 340-41,
345~46, 350~»51, 355-56, 360-61, and 365-66 of the August 10, 2017 Fifth Amended Complaint,
the relevant portions of which the court has highlighted in pink in the attached Court Exhibit B, if
not otherwise highlighted in a difference color. These paragraphs, however, contain patent
infringement allegations concerning other patents and therefore are dismissed to the extent they
concern the ’439 Patent. lf Plaintiff can identify post-issuance activity incorporated Within these
paragraphs that is not otherwise dismissed, the court Will reconsider dismissal of those relevant

portions.

38

For these reasons, the court has determined that the patent infringement allegations of the
August 10, 2017 Fifth Amended Complaint concerning the ’761, ’280, and ’189 Patents must be
dismissed under RCFC 12(b)(6).33

V. CONCLUSION.

For the reasons discussed herein, the Government’s October 20, 2017 Motion For Partial
Dismissal, pursuant to RCFC 12(b)(1) and 12(b)(6), is granted-in-part and denied-in-part.
Plaintiff`s November 17, 2017 Motion For Leave To File A Motion For Summary Judgment,
is denied, as the Government “has not had an opportunity to make full discovery.” Celofex
Corp. v. Catren‘, 477 U.S. 317, 326 (1986).

The court will convene a telephone status conference Within the next two Weeks to identify
What, if any, patent infringement allegations are viable and may be adj udicated, and how the parties
propose proceeding

IT IS SO OR])ERED.

Chief Judge

33 Infringement of the ’761 , ’280, and ’ 189 Patents is alleged in 1111 91_92 of the August 10,
2017 Fifth Amended Complaint, the relevant portions of Which the court also has highlighted in
purple in the attached Court Exhibit B. These paragraphs, however, contain patent infringement
allegations concerning other patents and therefore are dismissed to the extent they concern the
’761, ’280, and ’189 Patents.

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4259647. Public record. Not legal advice.