Opinion

Bondyopadhyay v. United States

Court: United States Court of Federal Claims
Filed: Jun 23, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 12.0%

“28 U.S.C. § 1498(a) permits suits against the United States for its unauthorized use of a patented invention.”

How later courts described this case

“28 U.S.C. § 1498(a) permits suits against the United States for its unauthorized use of a patented invention.”
“Dismissals for lack of jurisdiction may be given res judicata effect as to the jurisdictional issue.”
affirming lower court’s dismissal of a plaintiff’s third complaint on the basis of collateral estoppel because plaintiff’s two prior complaints were identical to the third complaint and had been dismissed for lack of subject matter jurisdiction
“This court lacks jurisdiction over plaintiff’s conspiracy claim because the Tucker Act specifically states that the Court of Federal Claims does not have jurisdiction over claims ‘sounding in tort.’”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 19-1831C

Filed: June 23, 2020

* * * * * * * * * * * * * * * * * ** *

PROBIR K. BONDYOPADHYAY, *

Plaintiff, *

v. Pro Se; Patent Infringement; Res

Judicata; Fifth Amendment Taking;

UNITED STATES, *

Fraud; Statute of Limitations.

Defendant. *

* * * * * * * * * * * * * * * * * ** *

Probir K. Bondyopadhyay, pro se, Houston, TX.

Joshua I. Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With him were

Gary L. Hausken, Director, Commercial Litigation Branch, and Joseph H. Hunt,

Assistant Attorney General, Civil Division.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiff’s complaint, filed on November 27, 2019, states that “[t]he Plaintiff, a U.S.

Citizen is the sole inventor and owner of the live U.S. Patent 6,292,134 entitled Geodesic

Sphere Phased Array Antenna System.” (capitalization and emphasis in original) (internal

references omitted). Attached to plaintiff’s complaint is only the first page of the ‘134

patent, which is dated September 18, 2001. The ‘134 patent lists plaintiff as the inventor.

The abstract of the ‘134 patent attached to the complaint states:

A geodesic sphere phased array antenna system, capable of scanning the

entire omni-directional communication space and comprising substantially

equilateral triangular planar subarrays of antenna elements arranged in a

geodesic sphere configuration. Icosahedron, one of the five regular solids

and truncated icosahedron, one of the fifteen semi-regular solids are the

preferred basis of the geodesic sphere phased array construction. The

entire communication space is considered as subdivided into a large

number of smaller cells and corresponding to each such cellular

communication space, a contiguous set of the subarrays is energized and

electronically phased to scan the cellular space. Another contiguous set of

subarrays is energized and electronically phased to scan another cellular

space in a similar manner resulting in limited angle scanning requirements

which permit the basic antenna elements to be connected in a cluster as a

unit building block to which transmit/receive signal distribution and

processing means are connected resulting in lower costs in deployment,

operation and maintenance.

Below the abstract, the following image is provided:

The first page of the ‘134 patent also states that the ‘134 patent contains “30 Claims, 14

Drawing Sheets.” (capitalization and emphasis in original).

Plaintiff’s complaint, although at times difficult to follow, seems to allege that the

defendant infringed on his ownership of the ‘134 patent. Plaintiff’s complaint states that

“[t]he violation of the Constitutional Order has occurred at the Small Business Innovation

Research (SBIR) Program of the U.S. Air Force administered by the Air Force Research

Laboratory (AFRL) under the central control of the Office of the Secretary of Defense

(OSD).” (capitalization and emphasis in original) (internal references omitted). Plaintiff

further alleges in his opposition to defendant’s motion to dismiss that there have been

“two distinctly separate violations: (i) acquisition of Innovation fraud under Title 15 USC

section 638(a) and 638 (b). [sic] and (ii) violation of Exclusive Right for Limited Times

of an Inventor, Owner, U.S. Citizen, (This Plaintiff).” (capitalization and emphasis in

original). With regard to plaintiff’s alleged second violation, plaintiff states that the

“Exclusive Rights for Limited Times is a U.S. Constitutional Order that can NOT be

dismissed by any Article 3 U.S. Courts or Article 1 U.S. Courts, created under Section 8,

Clause 9.” (capitalization and emphasis in original).

Plaintiff’s complaint further states:

The U.S. Air Force has acquired the innovation (that soon became the U.S.

Patent), in 1999 in clear violation of Title 15 USC Section 638a and 638b

to modernize the Air Force Satellite Control Network (AFSCN). The proof,

at the origin of this U.S. Air Force effort, is staring at the Honorable Federal

Court in Exhibit-3.

(capitalization and emphasis in original). Exhibit 3 of plaintiff’s complaint is labeled: “TIME

LINE OF DEVELOPMENT WORKS ON THE MODERNIZATION OF AIR FORCE

SATTELITE CONTROL NETWORK (AFSCN) BY THE AIR FORCE RESEARCH

LABORATORY (AFRL)” (capitalization and emphasis in original), and contains an uncited

image depicting the United States Air Force’s projected acquisition timeline for the

construction of a Full Scale Geodesic Dome Phased Array Antenna, starting in 1999 and

completed by 2021.

Plaintiff’s multiple filings with the court in the above-captioned case do not specify

a particular device of the AFRL which he alleges infringed on the ‘134 patent. The above-

captioned case, Case No. 19-1831C, however, is one of many actions commenced by

plaintiff relating to the alleged infringement on the ‘134 patent, including an administrative

claim filed by plaintiff with the Judge Advocate General of the United States Air Force on

June 17, 2002, which was denied 44 days later, on July 30, 2002. Between 2003 and

2013, plaintiff filed at least six lawsuits relating to the ‘134 patent in the United States

District Court for the Southern District of Texas against contractors of the AFRL, as well

as against the United States.1

In defendant’s motion to dismiss, the defendant notified the court of six lawsuits filed by

plaintiff between 2002 and 2013 which relate to the ’134 patent. Defendant states:

Plaintiff filed two lawsuits against the Government’s contractors, alleging

infringement of the ‘134 patent by those contractors:

• Bondyopadhyay v. Custom Mfg. & Eng’g, Inc, Civ. No. 4:03-

cv-1542 (S.D. Tex. Filed May 7, 2003) (dismissed July 30,

2003 for lack of personal jurisdiction;

• Bondyopadhyay v. Alpha Omega Elec. LLC, Civ. No. 4:03-cv-

1578 (S.D. Tex. Filed May 9, 2003) (dismissed July 30, 2003

for lack of personal jurisdiction).

Plaintiff then filed four lawsuits against the Government in district court over

the next decade:

• Bondyopadhyay v. U.S. Secretary of Defense et al., Civ. No.

4:03-cv-3107 (S.D. Tex. Filed Aug. 6, 2003) (dismissed Dec.

5, 2003 for lack of subject matter jurisdiction and failure to

exhaust administrative remedies);

• Bondyopadhyay v. U.S. Dept. of Defense et al., Civ. No. 4:04-

cv-1990 (S.D. Tex. Filed May 18, 2004) (dismissed Aug. 6,

2004 for lack of subject matter jurisdiction);

• Bondyopadhyay v. Commander, U.S. Air Force Research

In 2014, plaintiff filed a previous lawsuit against the United States in the United

States Court of Federal Claims, which was assigned to Judge Williams. During the course

of the proceedings before Judge Williams, she issued three Opinions: a 2015 Opinion

granting the United States’ partial motion to dismiss, see Bondyopadhyay v. United

States, No. 14-147, 2015 WL 1311726 (Fed. Cl. 2015) (Bondyopadhyay I); a Claim

Construction Opinion in 2017, see Bondyopadhyay v. United States, 129 Fed. Cl. 793,

807 (Fed. Cl. 2017) (Bondyopadhyay II); and finally, a grant of defendant’s motion for

summary judgment in 2018, see Bondyopadhyay v. United States, 136 Fed. Cl. 114

(Bondyopadhyay III), aff’d, 748 F. App’x 301 (Fed. Cir. 2018). Also in 2018, Judge

Williams’ summary judgment decision in favor of defendant in Bondyopadhyay III was

affirmed by the United States Court of Appeals for the Federal Circuit. See

Bondyopadhyay v. United States, 748 F. App’x 301 (Fed. Cir. 2018) (Bondyopadhyay IV).

In Judge Williams’ decision granting defendant’s partial motion to dismiss in

Bondyopadhyay I, Judge Williams determined that some of plaintiff’s claims were time-

barred, and others “arose after expiration of the patent-in-suit.” See Bondyopadhyay I,

2015 WL 1311726, at *1. Judge Williams’ decision in Bondyopadhyay I also dismissed

plaintiff’s “claims for a Fifth Amendment taking, punitive damages, and costs arising out

of other litigation.” Id. In Judge Williams’ Claim Construction Opinion in Bondyopadhyay

II, Judge Williams’ determined, after a claims construction hearing, that the ‘134 patent’s

use of the term “sphere” meant “greater than a hemisphere so as to provide the phased

array antenna hemispherical or wider coverage.” See Bondyopadhyay II, 129 Fed. Cl. at

807.

In granting summary judgment in favor of the United States in Bondyopadhyay III,

Judge Williams found that there was no infringement of the ‘134 patent by the United

States Air Force’s device, referred to as the Ball Advanced Technology Demonstration

antenna (Ball ATD). See Bondyopadhyay III, 136 Fed. Cl. at 124. Judge Williams

described the Ball ATD as follows:

There is only one accused device at issue—the Ball Advanced Technology

Demonstration antenna. Since at least 2000, the Air Force Research

Laboratory was interested in the feasibility of a large antenna system called

the Geodesic Dome Phased Array Antenna. As part of this research, the Air

Laboratory (AFRL) et al., Civ. No. 4:12-cv-1658 (S.D. Tex.

filed June 1, 2012); and

• Bondyopadhyay v. U.S. Secretary of Defense et al., Civ. No.

4:12-cv-1914 (S.D. Tex. Filed July 1, 2013) (dismissed Oct.

23, 2013 for lack of subject matter jurisdiction).

The court also notes that a Westlaw docket search for plaintiff, at

https://1.next.westlaw.com/Search/Results.html?query=adv%3A%20%22Probir%20K.%

20Bondyopadhyay%22&contentType=DOCKET&querySubmissionGuid=i0ad74013000

001729929984d66570adb&categoryPageUrl=Home%2FDockets&searchId=i0ad74013

000001729929984d66570adb&transitionType=ListViewType&contextData=(sc.Search)

(last visited June 23, 2020), reveals 15 cases filed by plaintiff in state and federal courts.

Force sponsored a number of small businesses to research and develop

technology required for building a full-scale Geodesic Dome Phased Array

Antenna. Subsequently, in November 2006, the Air Force awarded a

contract to Ball Aerospace & Technologies Corporation to develop a

Geodesic Dome Phased Array Antenna advanced technology

demonstration. Accordingly, Ball was “to develop, build, and demonstrate

the technological maturity, manufacturing readiness, and mission

effectiveness of a scalable sector” of a Geodesic Dome Phased Array

Antenna. The Ball Advanced Technology Demonstration antenna was the

result of this research and development.

The Ball Advanced Technology Demonstration antenna was designed in

2006–07, manufactured in 2007–08, and installed at Schriever Air Force

Base in Colorado in 2008–09, for testing and demonstration. The actual

demonstration of the Ball Advanced Technology Demonstration antenna

took place between February 2009 and May 2009.

The Ball Advanced Technology Demonstration antenna, which stood

roughly one to two stories high, was not completely constructed to constitute

a full sphere, and was only made up of six flat panels: a single central

pentagonal-shaped panel, surrounded by five outer hexagonal-shaped

panels. . . .

After the demonstration in 2009, the Ball Advanced Technology

Demonstration antenna was disassembled, with one part sent back to Ball

Aerospace for further testing, and after 2012, the Air Force Research

Laboratory did not engage in any activities to develop, manufacture, or test

a Geodesic Dome Phased Array Antenna.

Bondyopadhyay III, 136 Fed. Cl. at 118–20 (internal references omitted). Finding that the

Ball ATD did not infringe upon the ‘134 patent under a literal interpretation, or under the

doctrine of equivalents, Judge Williams stated:

In sum, because the Ball Advanced Technology Demonstration antenna

was incapable of providing hemispheric or greater coverage, it did not

literally infringe the ‘134 patent. Under either test for infringement under the

doctrine of equivalents, the accused device cannot be found as infringing.

Accordingly, Defendant’s motion for summary judgment is GRANTED, and

Plaintiff’s ‘Motion of the Infringement Phase’ is DENIED.

Id. at 124 (capitalization and emphasis in original) (internal citation omitted).

As discussed above, plaintiff in the above-captioned case does not reference a

specific device which allegedly infringed on the ‘134 patent, although plaintiff’s filings in

the above-captioned case mention the previous proceedings in this court. Plaintiff’s

complaint states:

The constitutional financial claim has already been recorded with the U.S.

Court of Appeals for the Federal Circuit [Exhibit-6]. It is $100 per hour for

1500 hours per year for 11 years and 23 days, plus administrative and office

cost of $1000 per month for 60 months. The total amount of Constitutional

Financial Claim is $1,719,000.

(alteration, capitalization and emphasis in original). Attached as Exhibit 6 of plaintiff’s

complaint in the above-captioned case is a portion of plaintiff’s briefing before the United

States Court of Appeals for the Federal Circuit in Bondyopadhyay IV.2 Additionally, in

plaintiff’s opposition to defendant’s motion to dismiss, plaintiff references the company

which constructed the Ball ATD, stating that “[t]he U.S. Air force [sic] Research Laboratory

(AFRL) and the contractor Ball Aerospace Corporation have done sub-standard work.

This has already been pointed out during earlier Court proceedings (case 1:14-cv-00147-

MCW).”3

An excerpt from the appeal file in the United States Court of Appeals for the Federal

Circuit from Bondyopadhyay IV, which is attached at Exhibit 6 of plaintiff’s complaint in

the above-captioned case, states:

9.0 THE PLAINTIFF INDEPENDENT INVENTOR’S FINANCIAL CLAIM

9.1 PART-A based on exclusive rights for limited times (period

September 18, 2001 through October 11, 2012). The Plaintiff Appellant

independent Inventor was deprived of full time highly specialized Phased

Array Antenna Engineering work on his own invention.

9.2 This PART-A amount is $100 per hour for 1500 hours per year for

eleven (11) years and 23 days.

9.3 PART-B Plaintiff Appellant’s Court cost (US Court of Federal

Claims, period February 2014 through April 2018). This includes clerical,

postal, copying and office costs at their minimum.

9.4 This PART-B amount is $1000 per month for 50 months.

10. This Claim originated from a procurement fraud in the Small

Business Innovation Research (SBIR) program of the U.S. Air Force

managed by U.S. Air Force Research Laboratory (AFRL). Therefore, this

Constitutional Claim should be levied against the budget of the U.S. AFRL.

(capitalization and emphasis in original).

The court cannot find any such statement by Judge Williams or by the United States

Court of Appeals for the Federal Circuit which recognizes that the AFRL or Ball Aerospace

Corporation have “done sub-standard work.”

Plaintiff’s complaint in the above-captioned case, once again, appears to allege a

Fifth Amendment taking claim, stating that the “Defendant has taken the livelihood of this

Independent Inventor for a prolonged period of eleven years and 23 days and continues

to remain indifferent towards this Constitutional Order for a long time.” (capitalization and

emphasis in original). Plaintiff’s filings with the court in the above-captioned case,

however, do not indicate the exact nature of an alleged event that occurred eleven years

and 23 days prior to plaintiff’s filing of the above-captioned case.

Furthermore, plaintiff appears to allege fraudulent conduct by defendant. Exhibit 5

to plaintiff’s complaint is labeled: “U.S. AIR FORCE AND THE DEPARTMENT OF

DEFENSE ‘HONORS’ FALSE ‘INVENTOR’ OF THE GEODESIC SPHERE PHASED

ARRAY ANETENNA SYSTEM” (capitalization and emphasis in original). Exhibit 5

consists of the following article published on October 11, 2012 in “Air Force Print News

Today”4

AF nominates AFMC, AFSPC civilians for DOD award

By Gloria Kwizera

Air Force Personnel Center Public Affairs

10/11/2012 - JOINT BASE SAN ANTONIO-RANDOLPH, Texas --Two Air

Force civilians have been nominated for the Department of Defense

Distinguished Civilian Service Award.

Dr. Boris Tomasic, Air Force Research Laboratory, Air Force Materiel

Command, and Angelica M. Collazo, 92nd Information Operations

Squadron, Air Force Space Command, will represent the Air Force during

the 57th annual DOD competition, Air Force Personnel Center officials said.

The award is the highest honor given by the Secretary of Defense to career

civilian employees, said Staff Sgt. Leland T. Moseley, AFPC Special

Trophies and Awards section. It is presented annually to a small number of

DOD civilians whose careers reflect exceptional devotion to duty and

significant contributions of broad scope to DOD operational efficiency,

economy, or other improvements.

Tomasic invented and led the development of a revolutionary new antenna

- the Geodesic Dome Phased Array Antenna - for the Air Force satellite

control network. It provides tracking, telemetry and control of nearly all DOD

and National Aeronautics and Space Administration satellites, transitioning

the technology from initial concept to a field ready demonstration levels, He

also provided critical support to Air Combat Command on the Joint Threat

AF Nominates AFMC, AFSPC civilians for DOD award, available at,

https://www.af.mil/News/Article-Display/Article/110314/af-nominates-afmc-afspc-

civilians-for-dod-award (last visited June 19, 2020).

Emitter, Increment Two Program, developing a system that mimics surface-

to-air missile system radars currently employed worldwide.

Tomasic’s contributions to antenna technology paved the way for Air Force,

Navy and Marine fighter pilots to fly against several emulator systems in

realistic combat training scenarios. Tomasic also contributed to practical

radar and communication system improvements that benefit all DOD forces,

including a field deployable phased array for ballistic missile defense,

assessment of the Army’s Comanche and Black Hawk helicopter antennas,

Space Based Radar system development for the Defense Advanced

Research Projects Agency and development of extremely high frequency

solid state antenna technology that resulted in improved aircraft connectivity

with the military strategic, tactical and relay satellite network..

Collazo has been at the forefront of cutting-edge cyber defense initiatives

critical to the projection of global military power and national defense. She

led the execution of more than $62 million to deploy the first of its kind global

information protection capability, initiating more than 200 major software

changes to a cyber incident handling database. That system is now the

baseline for U.S. Strategic Command’s Joint Computer Emergency

Response Team Database, used by Joint Chiefs of Staff decision-makers

to correlate critical cyber incidents across all services.

Collazo drove establishment of facilities that emulated DOD networks

enabling operators to conduct product and network security assessments.

As a result, her facility was selected as the first-ever site for critical testing

of enterprise-wide solutions to prevent, detect and counter unauthorized

users and actions on DOD networks. She directed 63 system and 25 base

cyber vulnerability assessments, sharing findings with numerous DOD

commanders, system program offices and other joint agencies, enabling

them to remediate thousands of critical system vulnerabilities.

Tomasic and Collazo are authorized to wear the Air Force Recognition

Lapel Pin, Moseley said.

(capitalization and emphasis in original). In plaintiff’s opposition to defendant’s motion to

dismiss, plaintiff also states that defendant committed “acquisition of Innovation fraud

under Title 15 USC section 638(a) and 638 (b).” (capitalization in original).

Defendant moves to dismiss plaintiff’s complaint in its entirety, on multiple grounds,

arguing that this court lacks subject-matter jurisdiction over plaintiff’s claims, and that

plaintiff has failed to state a claim upon which relief can be granted, pursuant to Rules

12(b)(1) and 12(b)(6) (2019) of the Rules of the United States Court of Federal Claims

(RCFC). Defendant states that “it appears there are three potential causes of action in

the complaint: (1) unauthorized patent use by the Government; (2) a ‘taking’ by the

Government of the ‘134 patent; and (3) a fraud claim (or inventorship dispute) against the

Government.” (internal references and footnote omitted). Finally, defendant argues that

all of plaintiff’s claims are barred by the statute of limitations. Regarding the alleged

unauthorized patent use, defendant argues that “[a]lthough the complaint does not

identify any particular accused device, the exhibits appended to Plaintiff’s complaint here

and in Bondyopadhyay I make clear that Plaintiff accuses the exact same device of

infringing the exact same patent” in both suits. (capitalization and emphasis in original).

Defendant argues that “both the patent and taking claims have previously been

adjudicated against Plaintiff, such that these causes of action fail on the grounds of res

judicata.” Defendant argues that “neither the patent nor the taking claims can be plausibly

pled because the ‘134 patent has been construed in a manner that prohibits a finding of

infringement or taking by the Government’s activities.” Defendant also argues that the

court “lacks any semblance of subject-matter jurisdiction over Plaintiff’s taking and fraud

claims.”

DISCUSSION

The court recognizes that plaintiff is proceeding pro se. When determining whether

a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, a pro se

plaintiff is entitled to a more liberal construction of the pro se plaintiff’s pleadings. See

Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se

complaint be held to “less stringent standards than formal pleadings drafted by lawyers”),

reh’g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),

reh’g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322

(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff’d, 603 F.

App’x 947 (Fed. Cir.), cert. denied, 575 U.S. 985 (2015). However, “there is no ‘duty [on

the part] of the trial court . . . to create a claim which [plaintiff] has not spelled out in his

[or her] pleading . . . .’” Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations

in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clark

v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v.

United States, 96 Fed. Cl. 89, 94, aff’d, 443 F. App’x 542 (Fed. Cir. 2011); Minehan v.

United States, 75 Fed. Cl. 249, 253 (2007). “While a pro se plaintiff is held to a less

stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff,

nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance

of the evidence.” Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v.

Rowe, 449 U.S. at 9; and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.), reh’g

and reh’g en banc denied (Fed. Cir. 2002)); see also Pauly v. United States, 142 Fed. Cl.

157 (2019); Golden v. United States, 129 Fed. Cl. 630, 637 (2016); Shelkofsky v. United

States, 119 Fed. Cl. 133, 139 (2014) (“[W]hile the court may excuse ambiguities in a pro

se plaintiff’s complaint, the court ‘does not excuse [a complaint’s] failures.’” (quoting

Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995))); Harris v. United States, 113

Fed. Cl. 290, 292 (2013) (“Although plaintiff’s pleadings are held to a less stringent

standard, such leniency ‘with respect to mere formalities does not relieve the burden to

meet jurisdictional requirements.’” (quoting Minehan v. United States, 75 Fed. Cl. at 253)).

“Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiff’s claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing

that the pleader is entitled to relief.” RCFC 8(a)(1), (2); Fed. R. Civ. P. 8(a)(1), (2) (2019);

see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly, 550 U.S.

at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of law and

unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp.,

136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Am. Bankers Ass’n v. United States, 932

F.3d 1375, 1380 (Fed. Cir. 2019) (“To avoid dismissal under RCFC 12(b)(6), a plaintiff

‘must allege facts “plausibly suggesting (not merely consistent with)” a showing of

entitlement to relief.’” (quoting Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849,

853 (Fed. Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557))). McZeal v.

Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part,

dissenting in part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory

allegations unsupported by any factual assertions will not withstand a motion to dismiss.”),

aff’d, 460 U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief

above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S

Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir.

2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or

‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555.

Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. at 555).

The United States has waived sovereign immunity over patent infringement claims

against the federal government and its contractors, and has provided the United States

Court of Federal Claims with jurisdiction to hear such claims, under 28 U.S.C. § 1498(a).

Section 1498(a) states, in relevant part:

Whenever an invention described in and covered by a patent of the United

States is used or manufactured by or for the United States without license

of the owner thereof or lawful right to use or manufacture the same, the

owner’s remedy shall be by action against the United States in the United

States Court of Federal Claims for the recovery of his reasonable and entire

compensation for such use and manufacture. . . .

For the purposes of this section, the use or manufacture of an invention

described in and covered by a patent of the United States by a contractor,

a subcontractor, or any person, firm, or corporation for the Government and

with the authorization or consent of the Government, shall be construed as

use or manufacture for the United States.

28 U.S.C. § 1498(a) (2018); see also Golden v. United States, 955 F.3d 981, 986 (Fed.

Cir. 2020) (“28 U.S.C. § 1498(a) permits suits against the United States for its

unauthorized use of a patented invention.”); Zoltek Corp. v. United States, 672 F.3d 1309,

1312 (Fed. Cir. 2012).

Defendant in the above-captioned case asserts that plaintiff’s patent claims have

previously been decided in this court, in favor of the United States, by Judge Williams’

decisions, on the partial motion to dismiss, Bondyopadhyay I, the claims construction,

Bondyopadhyay II, and the motion for summary judgment, Bondyopadhyay III. The United

States Court of Appeals for the Federal Circuit affirmed the lower court’s claim

construction and finding that the Air Force’s Ball ATD did not infringe on the ‘134 patent.

See generally Bondyopadhyay IV, 748 F. App’x at 308. Defendant argues that the

doctrine of res judicata, and more specifically, the doctrine of claim preclusion, bars

plaintiff from bringing his claim of patent infringement again in the above-captioned case.

The doctrine of res judicata “includes the two related concepts of claim preclusion

and issue preclusion.” Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1323 (Fed.

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2008); see also Faust v. United States,

101 F.3d 675, 677 (Fed. Cir.), reh’g denied (Fed. Cir.), cert. denied, 520 U.S. 1200 (1997)

(“[W]e note that the term res judicata has been used narrowly to denote ‘claim preclusion’

and more generally to denote either ‘claim preclusion’ or ‘issue preclusion.’” (quoting

Foster v. Hallco Mfg. Co., 947 F.2d 469, 478 (Fed. Cir. 1991))). The United States

Supreme Court has stated:

Under the doctrine of res judicata, a judgment on the merits in a prior suit

bars a second suit involving the same parties or their privies based on the

same cause of action. Under the doctrine of collateral estoppel, on the other

hand, the second action is upon a different cause of action and the judgment

in the prior suit precludes relitigation of issues actually litigated and

necessary to the outcome of the first action.

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979).

In a recent case, the United States Court of Appeals for the Federal Circuit

described the difference between claim and issue preclusion as follows:

“The doctrine of res judicata involves the related concepts of claim

preclusion and issue preclusion.” Phillips/May Corp. v. United States, 524

F.3d 1264, 1267 (Fed. Cir. 2008). “Issue preclusion operates only as to

issues actually litigated, whereas claim preclusion may operate between the

parties simply by virtue of the final judgment.” Young Engn’rs, Inc. v. U.S.

Int’l Trade Comm’n, 721 F.2d 1305, 1314 (Fed. Cir. 1983).

First Mortg. Corp. v. United States, Case No. 19-1798, 2020 WL 3108286, at *4 (Fed. Cir.

June 12, 2020) (ellipses in original).

Regarding claim preclusion, the Federal Circuit in First Mortgage further stated:

Claim preclusion “foreclose[es] any litigation of matters that . . . should have

been advanced in an earlier suit.” Phillips/May Corp., 524 F.3d at 1267

(internal quotation marks and citation omitted). “A final judgment on the

merits of an action precludes the parties or their privies from relitigating

issued that were or could have been raised in that action.” Federated Dep’t

Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed.2d 103

(1981) (citing Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715,

92 L. Ed. 898 (1948) and Cromwell v. Cty. Of Sac, 94 U.S. 351, 352–53, 24

L. Ed. 195 (1877)).

First Mortg. Corp. v. United States, 2020 WL 3108286, at *4 (alteration and ellipses in

original); see also Hallco Mfg. Co., Inc. v. Foster, 256 F.3d 1290, 1294 (Fed. Cir. 2001)

(“The general concept of claim preclusion is that when a final judgment is rendered on

the merits, another action may not be maintained between the parties on the same

‘claim.’” (citing Restatement (Second) of Judgments §§ 18–19)).

“Generally, claim preclusion applies where: ‘(1) the parties are identical or in privity;

(2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is

based on the same set of transactional facts as the first.’” First Mortg. Corp. v. United

States, 2020 WL 3108286, at *4 (quoting Ammex, Inc. v. United States, 334 F.3d 1052,

1055 (Fed. Cir. 2003) (citing Parklane Hosiery Co. v. Shore, 439 U.S. at 326 n.5)). A

Judge of the United States Court of Federal Claims has stated:

[C]laim preclusion applies when there is (i) “a judgment on the merits in a

prior suit;” (ii) “a second suit involving the same parties or their privies;” and

(iii) the second suit is “based on the same cause of action.” Parklane

Hosiery, 439 U.S. at 326 n.5, 99 S. Ct. 645; see also Gillig[ v. Nike, Inc.],

602 F.3d at 1361 [(Fed. Cir. 2010)]; Jet, Inc. v. Sewage Aeration Sys., 223

F.3d 1360, 1362 (Fed. Cir. 2000); Strategic Hous. Finance Corp. of Travis

Cty. v. United States, 87 Fed. Cl. 183, 192 (2009).

Aviation Software, Inc. v. United States, 101 Fed. Cl. 656, 662–63 (2011). Furthermore,

for claim preclusion to apply, “a litigant must have a ‘full and fair opportunity’ to litigate its

case.” Id. at 663 (quoting Poyner v. Murray, 508 U.S. 931, 933 (1993)); see also Kremer

v. Chemical Const. Corp., 456 U.S. 461, 481 n.22 (1982); Pactiv Corp. v. Dow Chemical

Co., 449 F.3d 1227, 1233 (Fed. Cir. 2006).

The related doctrine of issue preclusion, also known as collateral estoppel,

precludes a party from re-litigating an issue that was “litigated and resolved in a valid

court determination essential to the prior judgment.” New Hampshire v. Maine, 532 U.S.

742, 748-49, reh’g denied, 533 U.S. 968 (2001). “Under the judicially-developed doctrine

of collateral estoppel, once a court has decided an issue of fact or law necessary to its

judgment, that decision is conclusive in a subsequent suit based on a different cause of

action involving a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154,

158 (1984); see also Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under collateral estoppel,

once a court has decided an issue of fact or law necessary to its judgment, that decision

may preclude relitigation of the issue in a suit on a different cause of action involving a

party to the first case.”). “When an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated between the same parties in

any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). The United States

Supreme Court has explained that issue preclusion guards against “the expense and

vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on

judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United

States, 440 U.S. 147, 153–54 (1979) (footnote omitted). The Supreme Court also stated:

Issue preclusion bars successive litigation of “an issue of fact or law” that

“is actually litigated and determined by a valid and final judgment, and . . .

is essential to the judgment.” Restatement (Second) of Judgments § 27

(1980) (hereinafter Restatement). If a judgment does not depend on a given

determination, relitigation of that determination is not precluded. Id., § 27,

Comment h.

Bobby v. Bies, 556 U.S. 825, 834 (2009); see also United States v. Mendoza, 464 U.S.

at 158 (“Collateral estoppel, like the related doctrine of res judicata, serves to ‘relieve

parties of the cost and vexation of multiple law-suits, conserve judicial resources, and, by

preventing inconsistent decisions, encourage reliance on adjudication.’” (quoting Allen v.

McCurry, 449 U.S. at 94)).

The United States Court of Appeals for the Federal Circuit has set out four

guidelines for determining whether issue preclusion is appropriate:

Issue preclusion bars a cause of action when four conditions are met: “(1)

the issue is identical to one decided in the first action; (2) the issue was

actually litigated in the first action; (3) resolution of the issue was essential

to a final judgment in the first action; and (4) the plaintiff had a full and fair

opportunity to litigate the issue in the first action.”

Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012) (quoting

In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994); see also Biafora v. United States,

773 F.3d 1326, 1333 (Fed. Cir. 2014); Ga. Power Co. v. United States, 143 Fed. Cl. 743,

748 (2019).

Although plaintiff in the above-captioned case does not expressly mention any

device by name, including the AFRL’s Ball ATD, as having allegedly infringed upon the

‘134 patent, plaintiff’s complaint appears to revolve around the manufacturing of the Ball

ATD, the device which was at the center of the dispute before Judge Williams in

Bondyopadhyay I through Bondyopadhyay III, and the United States Court of Appeals for

the Federal Circuit in Bondyopadhyay IV. As discussed above, attached to plaintiff’s

complaint in the current case before the court is the following acquisition timeline:

The above acquisition timeline was also filed by plaintiff in Judge Williams’ case, and

appears to comport with Judge Williams’ description of the Ball ATD. In Bondyopadhyay

III, Judge Williams described the Ball ATD as follows: