Case: 13-1258    Document: 20    Page: 1   Filed: 09/16/2013




           NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

        IN RE ANTHONY BRIAN MALLGREN
              __________________________

                        2013-1258
                __________________________

    Appeal from the United States District Court for the
 Southern District of New York in No. 13-CV-1124, Judge
 Loretta A. Preska.
                __________________________

                      ON MOTION
                __________________________

                       PER CURIAM.
                        ORDER
     Anthony Brian Mallgren moves for leave to proceed in
 forma pauperis, which is also treated as a motion to
 reinstate.
     Mr. Mallgren filed a complaint in the United States
 District Court for the Southern District of New York
 alleging that he was unable to obtain a patent because he
 could not pay the application fee.
     According to Mr. Mallgren’s complaint, the fee consti-
 tuted a violation of the Ninth Amendment of the Consti-
 tution, which provides: “The enumeration in the
Case: 13-1258       Document: 20   Page: 2    Filed: 09/16/2013




 IN RE MALLGREN                                             2


 Constitution, of certain rights, shall not be construed to
 deny or disparage others retained by the people.”
      Mr. Mallgren moved to proceed in forma pauperis,
 which was granted by the district court. Shortly after the
 filing of the complaint, however, the court dismissed the
 suit as frivolous. The court explained that Mr. Mallgren
 had failed to establish any Ninth Amendment violation,
 and thus presented no legal theory in support of his
 complaint.
     The district court further certified that any appeal
 from its order would not be taken in good faith. See 28
 U.S.C. § 1915(a)(3). When a district court has so certified,
 a litigant may still file a motion for leave to proceed in
 forma pauperis with the appellate court. See Fed. R. App.
 P. 24(5). In evaluating such requests, however, the court
 entitles “great weight” to the district court’s decision that
 an appeal should not be taken. Coppedge v. United
 States, 369 U.S. 438, 455 (1962) (citing Johnson v. United
 States, 352 U.S. 565, 566 (1957).
      Based on this court’s own review, the motion for leave
 to proceed in forma pauperis is denied. To the extent that
 Mr. Mallgren wishes to pursue his constitutional chal-
 lenges it may be the better course for him to seek review
 from a decision of the Patent and Trademark Office
 denying his patent applications. To the extent that he
 still wishes to pursue this current case, the appeal will
 only be reinstated if Mr. Mallgren pays the regular court
 filing fee within 60 days from the date of this order.
     Accordingly,
     IT IS ORDERED THAT:
     The motion is denied.
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 3                                       IN RE MALLGREN




                                 FOR THE COURT


                                 /s/ Daniel E. O’Toole
                                     Daniel E. O’Toole
                                     Clerk


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