               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit


                                       04-1260


                                JOHN A. GALBREATH,

                                                          Plaintiff-Appellant,

                                           v.

                                     JOHN DUDAS,
                         Director, Patent and Trademark Office,

                                                          Defendant-Appellee.

                          __________________________

                          DECIDED: December 8, 2004
                          __________________________


Before MAYER, Chief Judge, NEWMAN and CLEVENGER, Circuit Judges

PER CURIAM.

      John A. Galbreath appeals the decision of the United States District Court for the

District of Columbia dismissing his case for failure to state a claim upon which relief

could be granted. Galbreath v. Rogan, No. 02-2354 (D. D.C. Dec. 9, 2003). We affirm.

      Whether Galbreath’s complaint was properly dismissed for failure to state a claim

is a question of law reviewed de novo. Gould, Inc. v. United States, 935 F.2d 1271,

1273 (Fed. Cir. 1991).    Under Rule 8(a) of the Federal Rules of Civil Procedure,

Galbreath’s claim must: (1) contain a short and plain statement of the court’s

jurisdiction; (2) a short and plain statement of a claim showing that he is entitled to
relief; and (3) a demand for judgment. While we will construe his complaint liberally,

see Conley v. Gibson, 355 U.S. 41, 45-46 (1957), it will not survive a motion to dismiss

unless it gives the United States Patent and Trademark Office (“PTO”) fair notice of

what his claim is and the grounds upon which it rests. See id. at 47. Also, under Rule

15(a) of the Federal Rules of Civil Procedure, Galbreath was permitted to either obtain

written consent from the PTO or petition the trial court to amend his complaint at any

time prior to entry of the trial court’s order for dismissal. The trial court could have

allowed amendment if justice so required. Id.

       Galbreath contends that the trial court erred in finding his three-paragraph

complaint insufficient. But even liberally construed, the complaint neither cites error in

the PTO’s rejection of his patent application’s claims, nor shows why his claims should

be allowed. His Statement of the Claims merely states the fact that the PTO rejected

his claims.   Thus, he fails to provide an adequate statement entitling him to relief.

Finally, even absent written consent to amend from the PTO, Galbreath could have, but

did not, petition the trial court for leave to amend.




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