Case: 19-2134    Document: 37     Page: 1   Filed: 04/10/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    LARRY GOLDEN,
                    Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2019-2134
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00104-EGB, Senior Judge Eric G. Bruggink.
                  ______________________

                  Decided: April 10, 2020
                  ______________________

    LARRY GOLDEN, Greenville, SC, pro se.

     DAVID ALLEN FOLEY, JR., Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for defendant-appellee. Also repre-
 sented by JOSEPH H. HUNT, GARY LEE HAUSKEN.
                 ______________________

  Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
 O’MALLEY, Circuit Judge.
     Larry Golden (“Golden”) appeals an order of the United
 States Court of Federal Claims (“Claims Court”)
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 2                                  GOLDEN v. UNITED STATES




 dismissing his claims against the United States (“govern-
 ment”) pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules
 of the Claims Court (“RCFC”). The Claims Court held that
 Golden’s complaint alleges a duplicative claim over which
 the court lacked jurisdiction, and his complaint fails to
 state a claim upon which relief can be granted. Golden v.
 United States, No. 19-cv-00104 (Fed. Cl. May 14, 2019),
 ECF No. 12 (“Claims Court Op.”). For the reasons ex-
 plained below, we affirm.
                        BACKGROUND
     Golden, proceeding pro se, filed this suit pursuant to
 28 U.S.C. § 1491(a) on January 17, 2019, seeking “reason-
 able and entire compensation for the unlicensed use and
 manufacture” of his “inventions described in and covered
 by” various patents. Golden v. United States, No. 19-104C
 (Fed. Cl. May 14, 2019), ECF No. 1; SAppx1012. 1 Relevant
 to this appeal are certain other proceedings involving some
 or all of the patents that were the subject of Golden’s com-
 plaint in this case: Golden v. United States, No. 13-307C
 (Fed. Cl. May 1, 2013) (“Lead Case”) and U.S. Dep’t of
 Homeland Security v. Golden, No. IPR 2014-00714 (“the
 IPR”). Resolution of this appeal does not require a detailed
 recitation of the factual background of the Lead Case or the



     1   Golden filed an “Informal Brief Appendix” on Sep-
 tember 3, 2019, using the prefix “Appx.” Golden also filed
 an additional appendix with his reply brief on November 7,
 2019. This Reply Appendix also uses the prefix “Appx,” and
 restarts the numbering at Appx1. The government, for its
 part, filed a Supplemental Appendix, using the same
 “Appx” prefix as Golden’s two appendices, but beginning
 the numbering at Appx1000. We cite to the government’s
 Supplemental Appendix as “SAppx,” Golden’s “Informal
 Brief Appendix” as “Appx,” and Golden’s Reply Appendix
 as “RAppx.”
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 GOLDEN v. UNITED STATES                                   3



 IPR. Accordingly, only the facts relevant to this appeal are
 discussed below.
                       A. Lead Case
      On May 1, 2013, Golden filed the complaint in the Lead
 Case, alleging patent infringement by the government pur-
 suant to 28 U.S.C. § 1498(a). The trial court allowed
 Golden to amend his complaint five times, and, with each
 amendment, Golden added claims of infringement of addi-
 tional patents. Starting with the second amended com-
 plaint, Golden also included allegations of “Government
 Taking,” alleging that the government had “taken the sub-
 ject matter, scope, technology rationale, devices schemat-
 ics, processes, methods, procedures and systems of what is
 now Golden’s patents . . . for public use without just com-
 pensation.” SAppx1791–93. Golden alleged that the
 Claims Court had jurisdiction over his takings claims un-
 der 28 U.S.C. § 1491. SAppx1791. Noting that the takings
 claims appeared to be duplicative of the patent infringe-
 ment claims, the trial court initially stayed Golden’s tak-
 ings claims, “pending determination of liability for the
 Government’s alleged patent infringement.” SAppx1794
 (citing Zoltek Corp. v. United States, 672 F.3d 1309 (Fed.
 Cir. 2012) (en banc)).
      On August 10, 2017, Golden filed his fifth and final
 amended complaint in the Lead Case. SAppx2040. This
 voluminous filing included a general “Count I,” alleging
 “Fifth Amendment Takings” of nine of Golden’s patents.
 SAppx2065–67. 2 It also included additional specific “Count
 Is,” which recite takings allegations tailored to the use of
 specific electronic devices. See, e.g., SAppx2069–70 (LG



    2   Specifically, Golden alleged taking of the “subject
 matter as outlined in” his U.S. Patent Nos. 7,385,497;
 7,636,033; 8,106,752; 8,334,761; 8,531,280; RE43,891;
 RE43,990; 9,096,189; and 9,589,439. SAppx2065.
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 4                                   GOLDEN v. UNITED STATES




 Electronics G5 Smartphone), SAppx2071–73 (LG Electron-
 ics V10 Smartphone), SAppx2074–75 (Apple’s iPhone/iPad
 Camera Biosensor for Facial Heart Rate Monitor). The
 complaint similarly included corresponding “Count IIs”—
 patent infringement claims under 28 U.S.C. § 1498 refer-
 encing the same electronic devices. See, e.g., SAppx2067–
 69; SAppx2070–71; SAppx2073–74; SAppx2075–76. 3
     On March 29, 2018, the Claims Court issued a memo-
 randum opinion and order, granting-in-part the govern-
 ment’s motion for partial dismissal of the Lead Case and
 denying Golden’s motion for leave to file a motion for sum-
 mary judgment. Golden v. United States, 137 Fed. Cl. 155,
 159 (2018) (dismissing certain patent infringement
 claims). Golden appealed the partial dismissal opinion to
 this court. SAppx2301. We dismissed the appeal as prem-
 ature because the Claims Court had not yet issued a final
 decision or judgment in the Lead Case. Order, Golden v.
 United States, No. 2018-1942 (Fed. Cir. Aug. 1, 2018); Or-
 der, Golden v. United States, No. 2018-1942 (Fed. Cir. May
 31, 2018).

     In November 2018, the Claims Court lifted the stay on
 Golden’s takings claims in the Lead Case, “[t]o pursue effi-
 cient resolution of all claims in th[e] case[.]” SAppx2303–4.
 The court permitted the government to file a motion to dis-
 miss those claims. SAppx2304. On May 8, 2019, the trial
 court granted the government’s motion and dismissed
 Golden’s takings claims. Golden v. United States, No.
 13-307C, 2019 WL 2056662, at *3 (Fed. Cl. May 8, 2019).




     3   Golden’s generic patent infringement “Count II”
 referenced the same nine patents as his takings claims, as
 well   as    his   Continuation     Patent    Application
 No. 15/530,839, which later issued as U.S. Patent
 No. 10,163,287. SAppx2067–69.
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 GOLDEN v. UNITED STATES                                    5



     Certain patent infringement allegations from the Lead
 Case have not yet been resolved, however. SAppx2303.
 The case is stayed pending resolution of Golden’s petition
 in an inter partes review proceeding affecting one of the pa-
 tents at issue in the Lead Case. SAppx2339–40. The
 court’s rulings on the takings claims in the Lead Case are,
 accordingly, not yet ripe for appeal to this court.

                 B. Inter Partes Review of
                 U.S. Patent No. RE43,990
      On April 30, 2014, the Department of Homeland Secu-
 rity (“DHS”) petitioned the Patent Trial and Appeal Board
 (“Board”) for inter partes review of claims 11, 74, and 81 of
 Golden’s U.S. Patent No. RE43,900. The Board instituted
 review on October 8, 2014. During this proceeding, Golden
 filed, pro se, a Patent Owner Response and Motion to
 Amend. The Board held a conference call with the parties
 following this filing, and informed Golden that it was un-
 clear whether his Motion to Amend was contingent on the
 Board finding the challenged claims unpatentable.
 SAppx2434–36. The Board informed Golden that, if his
 Motion to Amend was non-contingent, he was “in essence,
 abandoning the claims at issue, and saying that we should
 only look at the claims as amended in the Motion to
 Amend.” SAppx2436. The Board also “urge[d]” Golden “to
 retain new counsel because of the possible consequences of
 this proceeding, as well as its very technical nature.”
 SAppx2437. In response, Golden again filed his Patent
 Owner Response, as well as two separate Motions to
 Amend, which the Board treated “in the collective as a sin-
 gle motion to amend.” SAppx2512.
     On February 3, 2015, the Board held another telecon-
 ference, and confirmed with Golden that his Motion to
 Amend was, indeed, non-contingent. According to the
 Board, Golden confirmed “that he is abandoning the claims
 on which trial was instituted.” SAppx2512. The Board is-
 sued its final written decision on October 1, 2015. It
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 6                                  GOLDEN v. UNITED STATES




 granted Golden’s non-contingent request to cancel the orig-
 inal claims. It also found that Golden had failed to demon-
 strate by a preponderance of the evidence that his proposed
 substitute claims were patentable over the prior art.
 SAppx2547.
     Golden did not appeal the Board’s final written deci-
 sion, but is currently petitioning the Patent and Trade-
 mark Office (“PTO”) (through counsel) to strike the Inter
 Partes Review Certificate as an ultra vires agency action.
 In that petition, Golden argues that, under the Supreme
 Court’s recent decision in Return Mail, Inc. v. U.S. Postal
 Serv., 139 S. Ct. 1853 (2019), a government agency may not
 petition for IPR. SAppx2600–02.
                    C. The Present Case
     Golden filed the present case in January 2019, shortly
 before the Claims Court granted the government’s motion
 to dismiss the takings claims in the Lead Case. In this ac-
 tion, Golden again seeks compensation for the govern-
 ment’s Fifth Amendment Taking of his property, i.e.,
 several of his U.S. patents, which were also at issue in the
 Lead Case. Golden v. United States, No. 19-104C (Fed. Cl.
 May 14, 2019), ECF No. 1; SAppx1012. In this complaint,
 Golden alleges takings of the subject matter of his patents
 based on actions by different entities, including the Board,
 the Department of Justice, DHS, the Claims Court, and our
 court. SAppx1011–12. The complaint alleges the takings
 occurred by virtue of: (1) the government’s use, manufac-
 ture, development, and disclosure of the subject matter
 “outlined” in the claims and specifications of Golden’s pa-
 tents; (2) the cancellation of certain patent claims during
 the IPR initiated by the government; and, (3) certain ac-
 tions by the Claims Court and the Federal Circuit in the
 Lead Case. On January 29, 2019, the trial court deter-
 mined that Golden’s complaint raises identical questions of
 law and fact as the Lead Case and consolidated the cases.
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 GOLDEN v. UNITED STATES                                   7



     On May 14, 2019, upon the government’s motion pur-
 suant to RCFC 12(b)(1) and 12(b)(6), the Claims Court dis-
 missed Golden’s complaint in the present case as largely
 duplicative of the takings claims in the Lead Case, which
 the court had recently dismissed. Claims Court Op. at 1.
 The court held that, even if the complaint was not duplica-
 tive of the Lead Case, the Claims Court did not have juris-
 diction over the takings claims because Golden cannot
 label his patent infringement claim as a “taking” in order
 to proceed under the court’s Tucker Act jurisdiction. Ac-
 cording to the trial court, patent infringement claims
 against the government are to be pursued exclusively un-
 der § 1498, and “‘patent rights are not cognizable property
 interests for Takings Clause purposes.’” Id. at 3–4 (citing
 Zoltek v. United States, 442 F.3d 1345 (Fed. Cir. 2006)
 (“Zoltek I”), vacated on other grounds on reh’g en banc,
 672 F.3d 1309 (Fed. Cir. 2012) (“Zoltek II”) and quoting
 Christy, Inc. v. United States, 141 Fed. Cl. 641, 657–60
 (2019)).

     As to Golden’s IPR-based takings claims, the trial court
 found that patent rights are not private property for pur-
 poses of a Fifth Amendment takings claim. The court then
 concluded, “setting aside whether an action by the Board
 could ever constitute a government taking,” the cancella-
 tion of claims in the IPR was the result of Golden’s volun-
 tary amendment of his claims. Id. at 4. Finally, as to
 Golden’s grievances against the Claims Court and this
 court, the trial court explained that the courts adjudicate
 patent rights, and, “in any event, as Mr. Golden himself
 notes, both courts have allowed his patent claims to con-
 tinue in the [Lead Case].” Id. Golden timely appeals. We
 have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

                        DISCUSSION
     Whether the Claims Court properly granted the gov-
 ernment’s motion to dismiss is a question of law. Rocovich
 v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). This
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 8                                   GOLDEN v. UNITED STATES




 court reviews a question of law de novo and reverses the
 Claims Court’s legal conclusion only if it is incorrect as a
 matter of law. See Placeway Constr. Corp. v. United States,
 920 F.2d 903, 906 (Fed. Cir. 1990).
     On appeal, Golden argues that the trial court improp-
 erly dismissed his takings claims based on: (1) the govern-
 ment’s infringement of his patents; (2) the institution of the
 IPR; and (3) the Claims Court’s dismissal of his causes of
 action relating to patent claims that were “unjustly can-
 celled in the IPR.” Appellant’s Br. 5, 13. He also argues
 that there were “several breaches of implied-in-fact con-
 tracts” by the government. Id. at 5. We address each ar-
 gument in turn.
                              A.

     We first consider the dismissal of Golden’s patent in-
 fringement-based takings claims. The Claims Court held
 that it did not have jurisdiction over these claims pursuant
 to 28 U.S.C. § 1491, because patent infringement claims
 against the government are to be pursued exclusively un-
 der 28 U.S.C. § 1498. Claims Court Op. at 3–4 (citing
 Zoltek I, 442 F.3d at 1350–53). We agree.

     The Claims Court has limited jurisdiction to entertain
 suits against the United States. The Tucker Act is the
 principal statute governing the jurisdiction of the Claims
 Court. It waives sovereign immunity for claims against the
 United States that are founded upon the Constitution, a
 federal statute or regulation, or an express or implied con-
 tract with the United States. 28 U.S.C. § 1491. Section
 1491 carves out an important exception: it does not waive
 sovereign immunity for claims sounding in tort. Id. As
 relevant to this case, another statute, 28 U.S.C. § 1498(a)
 permits suits against the United States for its unauthor-
 ized use of a patented invention. Under this statute, a pa-
 tent owner may “recover[] . . . his reasonable and entire
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 GOLDEN v. UNITED STATES                                    9



 compensation for such use and manufacture.” 28 U.S.C.
 § 1498(a).

     In support of its conclusion that § 1498 provides the
 sole avenue for pursuing a claim of patent infringement
 against the United States, the Claims Court relied on our
 decision in Zoltek I. There, we affirmed the Claims Court’s
 decision that patent owner Zoltek’s § 1498(a) infringement
 claims against the government were barred because every
 step of the claimed method was not performed in the
 United States. And, relying on the Supreme Court’s deci-
 sion in Schillinger v. United States, 155 U.S. 163 (1894), we
 held that Zoltek was not permitted to proceed under the
 Tucker Act by alleging that the infringement was a taking.
 Zoltek I, 442 F.3d at 1350. As the subsequent history of the
 Zoltek case shows, our decision in Zoltek I does not control
 the jurisdictional analysis here. 4 We agree, however, with
 the conclusion in Zoltek I that 28 U.S.C. § 1498 provides
 the only avenue for a patent owner to bring an action
 against the government for patent infringement.

     The Takings Clause of the Fifth Amendment states
 that private property shall not “be taken for public use,



     4    There, on remand, the Claims Court granted the
 patent owner’s motion to amend its complaint and to trans-
 fer the case, and certified that decision to us for an inter-
 locutory appeal. We then voted en banc to vacate the
 Zoltek I holding that Zoltek’s § 1498(a) infringement claims
 were barred. Zoltek II, 672 F.3d at 1326–27. And, we held
 that, “[s]ince the Government’s potential liability under
 § 1498(a) is established, we need not and do not reach the
 issue of the Government’s possible liability under the Con-
 stitution for a taking. The trial court’s determinations on
 that issue are vacated.” Id. at 1327. The Zoltek I takings
 analysis, is therefore, persuasive authority, but not binding
 on us.
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 10                                  GOLDEN v. UNITED STATES




 without just compensation.” U.S. Const. amend. V. But a
 cause of action under the Fifth Amendment is unavailable
 to patent owners alleging infringement by the government.
 Schillinger, 155 U.S. at 168–69. In Schillinger, the Su-
 preme Court held that a patentee could not sue the govern-
 ment for patent infringement as a Fifth Amendment
 taking. Id. The Court explained that, under the Tucker
 Act, Congress waived its sovereign immunity as to certain
 types of claims, but that waiver does not extend to “claims
 founded upon torts.” Id. at 168. According to the Court, a
 patent infringement action “is one sounding in tort[,]” and,
 just as Congress could not have intended every wrongful
 arrest or seizure of property to expose it to damages in the
 Court of Claims under the Due Process Clause, the wrong-
 ful appropriation of a patent license cannot expose the gov-
 ernment to liability under the Fifth Amendment’s Takings
 Clause. Id. at 168–169. Thus, under Schillinger, prior to
 the Patent Act of 1910 (later codified as amended at 28
 U.S.C. § 1498), the Claims Court lacked jurisdiction over
 patent infringement actions against the government. As
 we recognized in Zoltek I, Schillinger remains the law.
 442 F.3d at 1350.

     Subsequent legislation confirms that a patent owner
 may not pursue an infringement action as a taking under
 the Fifth Amendment. Following Schillinger, Congress en-
 acted the Patent Act of 1910, which “augmented the Court
 of Claims’ Tucker Act jurisdiction by providing jurisdiction
 over the tort of patent infringement.” Id. at 1351. We ex-
 plained in Zoltek I that 28 U.S.C. § 1498 “‘add[ed] the right
 to sue the United States in the court of claims’ for patent
 infringement.” Id. (quoting Crozier v. Fried. Krupp Ak-
 tiengesellschaft, 224 U.S. 290, 304 (1912)) (alterations in
 original). Before the 1910 Act, no patent infringement ac-
 tion could be brought against the government “unless in
 the Court of Claims under a contract or implied contract
 theory.” Id. The Act “‘was intended alone to provide for
 the discrepancy resulting from the right in one case to sue
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 GOLDEN v. UNITED STATES                                    11



 on the implied contract and the non-existence of a right to
 sue’ for infringement.” Id. (quoting William Cramp & Sons
 Ship & Engine Bldg. Co. v. Int’l Curtis Marine Turbine Co.,
 246 U.S. 28, 41 (1918)). If the right to challenge the gov-
 ernment’s infringement already existed under the Fifth
 Amendment, there would be no need to expressly add to the
 Claims Court’s jurisdiction through the Patent Act. See id.
 Indeed, as we recognized in Zoltek I, holding to the contrary
 would “read an entire statute, § 1498, out of existence.”
 Id. at 1352.

     Schillinger mandates the conclusion reached by the
 Zoltek I court, which we expressly adopt today: the Claims
 Court does not have jurisdiction to hear takings claims
 based on alleged patent infringement by the government.
 Those claims sound in tort and are to be pursued exclu-
 sively under 28 U.S.C. § 1498. Thus, the Claims Court was
 without jurisdiction to hear Golden’s patent infringement-
 based takings claims, and it properly dismissed these
 claims. 5

                              B.

     We next turn to Golden’s IPR-based takings claims.
 We first address whether the Claims Court had jurisdiction
 to hear these claims.

     The government alleges that, “upon further considera-
 tion,” it has identified a jurisdictional problem that was not
 recognized below. Appellee’s Br. 40. The government ar-
 gues that the American Invents Act (“AIA”)’s creation of



     5    Because we find the Claims Court did not have ju-
 risdiction to hear Golden’s patent infringement-based tak-
 ings claims, we need not address the court’s alternative
 holding that these claims are duplicative of the claims in
 the Lead Case.
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 12                                  GOLDEN v. UNITED STATES




 inter partes review by the Board, followed by judicial re-
 view before this court, creates a “‘self-executing remedial
 scheme’ that ‘supersedes the gap-filling role of the Tucker
 Act.’” Id. at 41 (quoting United States v. Bormes, 568 U.S.
 6, 13 (2012)). According to the government, the AIA statu-
 tory scheme displaces Tucker Act jurisdiction because
 there is no procedural impediment to presentation of a tak-
 ings claim to the agency and because the remedial scheme
 provides for judicial review of constitutional challenges to
 the agency’s action. Id. at 43–49.

      The government’s argument is without merit. In
 Bormes, the Supreme Court explained that Tucker Act ju-
 risdiction is displaced “when a law assertedly imposing
 monetary liability on the United States contains its own ju-
 dicial remedies.” 568 U.S. at 12 (emphasis added). More
 recently, the Court explained that, “[t]o determine whether
 a statutory scheme displaces Tucker Act jurisdiction, a
 court must ‘examin[e] the purpose of the [statute], the en-
 tirety of its text, and the structure of review that it estab-
 lishes.’” Horne v. Dep’t of Agric., 569 U.S. 513, 526–27
 (2013) (quoting United States v. Fausto, 484 U.S. 439, 444
 (1988)). Thus, when there is a precisely defined statutory
 framework for a claim that could be brought against the
 United States, the Tucker Act gives way to the more spe-
 cific statutory scheme.

     Regardless of the structure of review it establishes, the
 AIA is not a statute that provides for claims against the
 United States. Looking to the purpose and text of the stat-
 ute, the AIA represents an overhaul of the U.S. patent sys-
 tem from a first-to-invent to a first-to-file regime.
 35 U.S.C. § 100. It also establishes post-grant review of
 patents. 35 U.S.C. § 321. The government is correct that,
 under the AIA, parties may raise constitutional challenges
 in our court on appeal from Board decisions. But this re-
 medial scheme does not convert the AIA into a statutory
 framework for claims against the United States. The AIA
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 GOLDEN v. UNITED STATES                                   13



 is by no means “a law assertedly imposing monetary liabil-
 ity on the United States.” Borne, 568 U.S. at 12. Accord-
 ingly, we reject the government’s argument that the AIA
 displaced Tucker Act jurisdiction over Golden’s IPR-based
 takings claims. 6
     As to the merits of Golden’s IPR-based takings claims,
 on appeal, Golden argues, inter alia, that the government’s
 actions (including in the IPR) resulted in a reduction of
 value of his property, destroyed his competitive edge, and
 interfered with his “reasonable investment-backed expec-
 tations.” Appellant’s Br. 7–8. We rejected similar argu-
 ments in Celgene Corp. v. Peter, 931 F.3d 1342 (Fed. Cir.
 2019). There, we explained that inter partes review pro-
 ceedings, like patent validity challenges in the district
 court, “serve the purpose of correcting prior agency error of
 issuing patents that should not have issued in the first
 place[.]” Id. at 1361. Additionally, we noted that “[p]atent
 owners have always had the expectation that the validity
 of patents could be challenged in district court. For forty
 years, [they] have also had the expectation that the PTO
 could reconsider the validity of issued patents on particular
 grounds, applying a preponderance of the evidence stand-
 ard.” Id. at 1362–63. Accordingly, we held that retroactive
 application of inter partes review proceedings to pre-AIA
 patents is not an unconstitutional taking under the Fifth
 Amendment. Id. at 1362.
     Although Golden does not challenge retroactive appli-
 cation of inter partes review in this case, Celgene controls
 the outcome here. Golden, as a patent owner, has “always
 had the expectation that the validity of patents could be


     6   This does not, of course, alter our conclusion that
 an action for patent infringement sounds in tort and the
 only avenue to sue the United States government for unau-
 thorized licensing of patent rights is a suit pursuant to
 28 U.S.C. § 1498. See supra, Section A.
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 14                                  GOLDEN v. UNITED STATES




 challenged in district court” or before the PTO. Id. at
 1362–63. Under Celgene, subjecting patents to inter partes
 review proceedings is not an unconstitutional taking under
 the Fifth Amendment. 7 Id. at 1362.
      We are mindful, of course, of the unique circumstances
 of the IPR in Golden’s case. This IPR was initiated by DHS,
 a federal agency. Following the cancellation of certain
 claims of his RE43,990 patent in the IPR, the Supreme
 Court made clear in Return Mail that “a federal agency is
 not a ‘person’ who may petition for post-issuance review
 under the AIA.” 139 S. Ct. at 1867. Golden may ar-
 gue that, in view of Return Mail, the cancellation of the



      7   Although it does not expressly address the issue
 here, the government has “not dispute[d] that a valid pa-
 tent is private property for the purposes of the Takings
 Clause.” Celgene, 931 F.3d at 1358. And, as we noted in
 Celgene, the Supreme Court’s recent decision in Oil States
 Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S.
 Ct. 1365 (2018), is not to the contrary. In Oil States, the
 Court explained that “the decision to grant a patent is a
 matter involving public rights—specifically the grant of a
 public franchise.” 138 S. Ct. at 1373 (emphasis in original).
 At the same time, it “emphasize[d] the narrowness of [its]
 holding” explaining that it was addressing “only the precise
 constitutional challenges” raised in that case. Id. at 1379.
 The Court admonished that its “decision should not be mis-
 construed as suggesting that patents are not property for
 purposes of the Due Process Clause or the Takings Clause.”
 Id. Despite the Claims Court’s express finding on the sta-
 tus of patent rights under the Fifth Amendment, we de-
 cline to address that question here, however, because, even
 if Golden’s patents are his private property for Takings
 Clause purposes, under Celgene, cancellation of patent
 claims in inter partes review cannot be a taking under the
 Fifth Amendment.
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 GOLDEN v. UNITED STATES                                   15



 patent claims in an inter partes review initiated by the gov-
 ernment could be considered an unconstitutional taking
 under the Fifth Amendment. We need not decide whether
 that is the case, however, for two reasons. First, Golden
 did not appeal the Board’s final written decision in the IPR
 to this court, and the decision became final before the Re-
 turn Mail decision was issued. Second, Golden voluntarily
 filed a non-contingent motion to amend the claims on
 which the IPR was instituted. His substitute claims were
 then found unpatentable. The claims at issue were there-
 fore cancelled as result of Golden’s own voluntary actions.
 In these circumstances, cancellation of the claims in the
 government-initiated inter partes review cannot be charge-
 able to the government under any legal theory.
                              C.
     Finally, we address Golden’s arguments regarding the
 alleged takings by the Claims Court and the breach of “im-
 plied-in-fact contracts” by the government. Appellant’s Br.
 5, 13. As the Claims Court explained, the actions of the
 Federal Circuit and the Claims Court cannot be an uncon-
 stitutional taking, as both courts “adjudicate rights in pa-
 tents.” Claims Court Op. at 4. As to the breach of “implied-
 in-fact contracts,” it appears these arguments are made ei-
 ther in support of Golden’s takings claims, discussed above,
 or raised for the first time on appeal. Accordingly, these
 arguments are either unpersuasive or waived.
                        CONCLUSION
     For the foregoing reasons, we affirm the Claims Court’s
 decision. We have considered the parties’ remaining argu-
 ments and find them unpersuasive.
                        AFFIRMED
