Petition for Writ of Certiorari — Probir K. Bondyopadhyay, Petitioner v. United States

Supreme Court, U.S.

PILED

MAY 2 2 2023

No.

OFFICE OF THE CLERK

93-\°iO

3fn ®Ije

Supreme Court of tfje (Hiiiteb States;

DR. PROBIR KUMAR BONDYOPADHYAY, Pro Se,

Petitioner

v.

U.S.A.

Respondent

On petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Probir Kumar Bondyopadhyay

15059 Caseta Drive, Apt. 3313

Houston, Texas 77082

l-(832)-758-6514

E-Mail: dr.bondy@gmail.com

August 15, 2023

1

QUESTIONS PRESENTED

A serious legal conflict has developed between the

USCFC and U.S. District Court involving Title 28

U.S.C. Section 1338(a) and Title 28 U.S.C. Section

1498(a) that the CAFC has not and will not resolve.

QUESTION!

Can the USCFC, the Federal trial court, dismiss

as a Fifth amendment property claim, the claim

arising out of admitted unauthorized use of a

patented U.S. invention by the Defendant U.S.A.

already established by the U.S District Court (SDTX,

Houston) under Title 28 USC Section 1338(a)?

QUESTION-2

The U. S. Court of Federal Claims (USCFC) is a

Federal trial court with nation-wide jurisdiction on

patent related claims against the Defendant U.S.A.

which has sovereign immunity against U.S. patent

11

infringements. Does the USCFC have the power to

vacate by summary judgment, based on a proven false

affidavit, a prior U.S. District Court order that

established, under Title 28 USC Section 1338(a),

existence

of

the

claim

based

on

admitted

unauthorized use of a patented U.S. invention by the

Defendant U.S.A.?

QUESTION 3

Penalty of perjury committed on behalf of the

Defendant U.S.A. by false affidavit, under Title 28

U.S.C. Section 1498(a) at the USCFC resulted in

vacating, by summary judgment, the admitted claim

established by U.S. District Court under Title 28 USC

Section 1338(a). Whereas, subsequent penalty of

perjury at the same U.S. District Court has been

prompt removal of the responsible U.SA officials! The

CAFC does not address this issue. What is the Truth?

Ill

LIST OF PARTIES

[X] All parties appear in the caption of the case on

the cover page.

RELATED CASES

1. U.S. District Court Case

Bondyopadhyay vs. U.S. Secretary of Defense et

al., Case 4:13-cv-01914

Judgment entered Oct. 23, 2013

2. U.S. Court of Federal Claims (USCFC) Case

Bondyopadhyay vs. U.S.A. Case l:14-cv-00147MCW

Judgment entered Feb. 09, 2018

3. U.S. Court of Appeals for the Federal Circuit

(CAFC) Case

IV

Bondyopadhyay vs. U.S.A. Case 0:2018cvus01674

Judgment entered Sept. 07, 2018

4. U.S. District Court Case

Bondyopadhyay vs. U.S. Secretary of Defense.,

Case 4:18-cv-03822 (Document 30)

Judgment entered July. 09, 2019

5. U.S. Court of Federal Claims (USCFC) Case

Bondyopadhyay vs. U.S.A. Case l:19-cv-01831MBH, Judgment entered June 23, 2020

6. U.S. Court of Appeals for the Federal Circuit

(CAFC) Case

Bondyopadhyay vs. U.S.A. Case 0:2020cvus02091

Judgment entered May 24, 2021

V

TABLE OF CONTENTS

OPINION BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

.6

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

12

CONCLUSION

16

INDEX TO APPENDICES

APPENDIX A CAFC Panel Rehearing

refused April 25, 2023

... App-1

APPENDIX B CAFC Decision on Appeal.. App-3

APPENDIX C

Order of U.S District Court

issued on Aug. 15, 2022 ... App-10

The following are submitted under Supreme Court

VI

Rule 14.1(i)(vi). Relevant excerpts

APPENDIX D

Order of U.S District Court

Originally establishing

existence of the claim

Oct. 23, 2013

APPENDIX E

App-18

Opinion and Order of USCFC

dismissing (based on false affidavit

shown) by summary judgment

(on February 9, 2018) Claims

established by U.S. District Court

App-20

APPENDIX F CAFC reaffirms Petitioner

as the inventor, owner

on Sept. 7, 2018

App-29

APPENDIX G U.S. District Court again

Reaffirms existence of

Claims on July 9, 2019 .... App-31

Vll

APPENDIX H

USCFC in 2020 declares

Patent Claim as Fifth

Amendment Claim

App-33

TABLE OF AUTHORITIES CITED

Bondyopadhyay vs. U.S. Secretary of Defense et al.

U.S. District Court, SDTX, Houston,

Case 4:13-cv-01914

Bondyopadhyay vs. U.S.A, U.S. Court of Federal

Claims (USCFC) Case l:14-cv-00147-MCW

Bondyopadhyay vs. U.S.A, U.S. Court of Appeals for

the Federal Circuit (CAFC)

Case 0:2018cvus01674

Bondyopadhyay vs. U.S. Secretary of Defense

U.S. District Court, SDTX, Houston,

Case 4:18-cv-03822

Bondyopadhyay vs. U.S.A, U.S. Court of Federal

Vlll

Claims (USCFC) Case l:19-cv-01831-MBH

STATUTES AND RULES

Title 28 USC Section 1338(a)

vs.

Title 28 USC Section 1498(a)

OTHER

[submitted under U.S. Supreme Court Rule

14.1(i)(vi)l

JEFFERSONIAN CLAIM (defined)

Simultaneously originating from Article 1 Section 8

Clause 8 of the U.S. Constitution (authored by

Thomas Jefferson) and the Sovereign Immunity of the

Defendant U.S.A, the Jeffersonian Claim is the U.S.

Inventor Owner’s Claim that arises out of admitted

unauthorized use of a U.S patent and whose legal

remedy is under Title 28 USC section 1498(a).

1

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgments below

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals

appears at Appendix A & B to the petition and is

[X] reported at Case 0:2022cvus02155,

Docket Documents 34 and 27

filed 04/25/2023 and 02/22/2023 respectively

The opinions of the United States district court

Appears at Appendix C to the petition and is

2

[X] reported at Case 4:22-cv-02204, Docket

Document 13, filed 08/15/2022

[to be read in conjunction with

Case l:19-cv-01831-MBH, Docket

Document 17, filed 06/23/2020 that

appears at Appendix-H, Relevant

excerpts filed under Supreme Court

Rule 14.1(i)(vi)]

JURISDICTION

[X] For cases from federal courts

The date on which the United States Court of

Appeals decided my case was February 22, 2023.

[ ] No petition for rehearing was timely filed in

my case.

[X] A timely petition for rehearing was denied

by the United States Court of Appeals on

the following date: April 25, 2023, and a

3

copy of the order denying rehearing appears

at Appendix A.

[X] A second extension of time to file the petition

for a writ of certiorari was granted to and

including sixty (60) days beyond July 25,

2023 on initial submissions received at the

office of the Clerk of the Supreme Court on

May 24, 2023 and July 25, 2023.

The jurisdiction of this Court is invoked under

28 U.S.C. section 1254(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S. Code § 1338 - Patents

(a) The district courts shall have original jurisdiction

of any civil action arising under any Act

of Congress relating to patents, plant variety

protection, copyrights and trademarks.

4

28 U.S. Code § 1498 - Patent

(a)

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. Reasonable and entire compensation

shall include the owner’s reasonable costs, including

reasonable fees for expert witnesses and attorneys, in

pursuing the action if the owner is an independent

inventor, a nonprofit organization, or an entity that

had no more than 500 employees at any time during.

5

the 5-year period preceding the use or manufacture of

the patented invention by or for the United States

U.S. CONSTITUTION: Article I, Section 8,

Clause 8:

[The Congress shall have Power . . . ] To promote the

Progress of Science and useful Arts, by securing for

limited Times to Authors and Inventors the exclusive

Right to their respective Writings and Discoveries.

6

STATEMENT OF THE CASE

1. This petitioner-plaintiff, a U.S. Citizen is the sole

inventor and sole owner of the patented invention (US

6,292,134) entitled: Geodesic Sphere Phased Array

Antenna System - a very large system architecture

patent for U.S. National Defense applications.

2.The U.S. Air Force had used this patented invention

unauthorized to modernize the Air Force Satellite

Control Network System (AFSCN)

during the

continuous time period February 25, 2000 through

October 11, 2012.

3. Upon admission by the Honorable U.S. Secretary

of Defense of unauthorized use of this patented

invention, the U.S. District Court, SDTX, Houston

established the existence of this petitioner-plaintiffs

financial claim on October 23, 2013 (Appendix-D,

Case 4:13-cv-01914, Docket Document 43, see page

7

App-18).

4. The nature of this case was civil fraud and was

prosecuted under Title 28 U.S.C. Section 1338(a).

5. This established claim was brought to US Court of

Federal Claims (USCFC) for adjudication under Title

28 USC Section 1498(a) on February 24, 2014 (see

Appendix-E, pages App-20 -App-28).

6. The Honorable U.S. Secretary of Defense admitted

in the U.S. District Court that a bogus inventor was

honored in early 2013. He resigned on November 24;

2014 and left office on February 17, 2015. Public

record confirms this.

7. On May 26, 2015 the U.S. Air Force Patent

Attorney who represented the U.S. Secretary of

Defense in the said U.S. District Court case, filed a

false affidavit under penalty of perjury (Appendix-E,

see pages App-23 - App-28) knowing that it is false,

8

to disrupt the settlement of the established Claim.

8. Over the long period of 2 years, 8 months and 14

days (May 26, 2015 through February 9. 2018) the

Defendant U.S (Air Force) could not produce (needless

to say) any evidence to support and affirm the (false)

affidavit and submitted a motion for summary

judgment. The USCFC granted a summary judgment

disregarding the penalty of perjury issue and being in

violation of Title 28 USC Section 1498(a) which

needed to be applied to the prior finding of

unauthorized

use

of

the

patented

invention

established by the said prior U.S. District Court order

made under Title 28 USC Section 1338(a).

9. Integrity First being the first motto of the U.S.

Air Force, the penalty ofperjury matter created in the

USCFC of the Williams Court (pages App-23-App-28),

became the immediate issue that needed to be

9

addressed first.

10. Since this sole Inventor-Owner’s patent claim for

admitted unauthorized use originated in the U.S.

District Court, the case was referred back to the U.S.

District Court on November 12, 2018 (Appendix-G,

see pages App-31-App-32) after the CAFC on

September 9, 2018 reconfirmed (Appendix-F, see

pages App-29, App-30) that this Petitioner -plaintiff

is the sole inventor-owner of the patent with a

subsequent mandate.

11. The U.S. District Court acting (Appendix-G, pages

App-31-App-32)

on

the

false

affidavit

issue

(Appendix-E) removed the person responsible for the

false affidavit - the Honorable U.S. Secretary of the

Air Force) on March 8, 2019 exactly thirty days

(almost to the minute) after the U.S. District Court

held its first and only hearing on February 8, 2019.

10

12. This raised the third question posed in the

beginning of this Writ petition.

13. After the <under penalty for perjury* issue

generated in the USCFC (Appendix-E) was addressed

(Appendix-G) in the U.S. District Court (SDTX.

Houston), the case went back to the USCFC

(Appendix-H) as a purely civil matter. In an

outrageous miscarriage of justice, the USCFC on the

second time (Appendix-H) viewed the unauthorized

use of the patented invention (the Jeffersonian Claim)

as a Fifth Amendment property taking claim, failing

to recognize the difference between intellectual

property and real property.

14. The CAFC (Appendix-B, see pages App-3-App-9)

failed to recognize that the Honorable U.S. Supreme

Court has established a gold standard on what is not

11

res Judicata. 347 US 483 is NOT res judicata of 163

US 537. As a result, progress of science is suffering on

a matter of grave importance for U.S. National

Defense. The patent as stated earlier, is for

modernization of Air Force Satellite Control Network

and other vital Defense applications.

15. This is exactly where the situation now stands.

16. The Honorable Supreme Court is respectfully

requested to declare that admitted unauthorized

patent use Claim is NOT a Fifth Amendment Claim,

setting aside the USCFC Opinion shown in AppendixH (see pages App-33 - App-35).

12

REASONS FOR GRANTING THE PETITION

1. The main reason for granting the petition is that

the U.S. Court of Federal Claims (USCFC) in an

outrageous

miscarriage

of

justice,

judicially

designated this Petitioner’s Title 28 USC Section

1498(a) Claim as a Fifth Amendment Taking Claim

and dismissed the Claim on June 23, 2020 (Case 1:19cv-01831-MBH, Document 17, see pages App-33 -App- 35). The Claim was first established by the U.S.

District Court under Title 28 USC Section 1338(a) on

October 23, 2013 (Case 4:13-cv-01914, Document 43,

see page App-18, 19). The U.S. Court of Appeals for

the Federal Circuit (CAFC) being a purely Civil Court

has been of no use in curing this serious problem for

reasons detailed below:

2. There is a clash of a fundamental nature that has

arisen between Title 28 USC Section 1338(a) and

\

13

Title 28 USC Section 1498(a) involving two Federal

trial Courts with exclusive jurisdictions that the

Court of Appeals for the Federal Circuit (CAFC) in its

present reincarnation can not deal with. Honorable

U.S.

Supreme

Court’s

attention

is

absolutely

necessary as it is affecting adversely, the progress of

science involving a very large system architecture

U.S. Patent for applications in U.S. National Defense.

3. The fundamental problem that manifested itself is

the legal issue of penalty of perjury and how it is

viewed and acted upon by the U.S. Court of Federal

Claims (USCFC) which is purely a civil Court and the

U.S. District Court (USDC, in this case TXSD,

Houston) which is not just a Federal Civil Court. The

CAFC which is a purely Federal Civil Appeals Court

has no power and is of no use in resolving the matter

(perjury) as it attracted provisions of Title 18 USC

14

Section 1621 in the USDC resulting in removal of the

U.S. Secretary of the Air Force on March 8, 2019

(public record, Case 4:18-cv-03822, Bondyopadhyay v.

The U.S. Secretary of Defense, (seepages App-31, 32).

4. The penalty for perjury issue was not addressed by

the CAFC, the first time (Case 0:2018cvusl674,

Document 32-1 filed 09/07/2018, see page App-29, 30).

Since this Petitioner’s Claim originated at the U.S.

District Court, the petitioner then went to the same

District Court the second time to reconfirm the

original Claim and adjudicate the penalty for perjury

issue and went back to the USCFC, the second time

(Case l:19-cv-01831-MBH stated above) and faced the

mischaracterization of the said reconfirmed patent

15

Claim as a Fifth Amendment Taking Claim (see pages

App-33 - App-35). The CAFC for the second time

(Case 0:2020cvus02091, filed April 21, 2021) and for

the third time (present case) failed to cure the said

mischaracterization of the patent Claim made under

Title 28 USC Section 1498(a).

16

CONCLUSION

U.S.A. is a constitutional republic governed by the

Rule of Law. The CAFC in its present reincarnation

being a purely civil court cannot correctly resolve the

dispute between the USCFC and the USDC (District

Court) over the penalty of perjury issue, that has

resulted in serious miscarriage of justice.

The claim for admitted unauthorized use of a

patented invention over a substantial amount of time

established and reaffirmed by the U.S. District Court

(which is not a purely civil court) cannot be dismissed

as a real estate property taking claim by the USCFC

and CAFC.

Title 28 USC Section 1498(a) must now have to

be correctly enforced by the Honorable

Supreme

Court of the United States on the legal findings of the

17

Claim by U.S. District Courts, confirmed by Title 28

USC Section 1338(a).

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

SS12.02-3

DR. PROBIR KUMAR BONDYOPADHYAY, Pro Se.