                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-5059

                                DR. PO KEE WONG,

                                                    Plaintiff-Appellant,

                                         v.

                                 UNITED STATES,

                                                    Defendant-Appellee.


      Dr. Po Kee Wong, of Silver Spring, Maryland, pro se.

       Conrad J. DeWitte, Jr., Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were Tony West, Assistant Attorney General, and John
Fargo, Director.

Appealed from: United States Court of Federal Claims

Judge Lawrence M. Baskir
                          NOTE: This disposition is nonprecedential



 United States Court of Appeals for the Federal Circuit

                                        2009-5059

                                   DR. PO KEE WONG,

                                                         Plaintiff-Appellant,

                                             v.

                                    UNITED STATES,

                                                         Defendant-Appellee.


                   Appeal from the United States Court of Federal Claims
                        in 08-CV-395, Judge Lawrence M. Baskir.

                             __________________________

                             DECIDED: July 9, 2009
                             __________________________


Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.

PER CURIAM.


          Dr. Po Kee Wong appeals from the final judgment of the United States Court of

Federal Claims dismissing his complaint for lack of subject matter jurisdiction and for

failure to state a claim upon which relief can be granted. Dr. Po Kee Wong v. United

States, No. 08-CV-395 (Fed. Cl. Feb. 25, 2009). For the reasons set forth below, we

affirm.

                                              I

          Dr. Wong, a former Boston public school teacher, is an inventor.      He holds

several patents including U.S. Patent No. 5,848,377 (‘377) (Wong’s Angles to
Determine Trajectories of Objects), U.S. Patent No. 5,084,232 (‘232) (Trajectory Solid

Angle’s Impacts to Physics and High Technologies), and U.S. Patent No. 6,430,516 B1

(‘516) (High Speed Rotating Shafts and Methods of Characterizing Same). He also

prosecuted patent application Serial No. 08/980,657 (‘657), entitled “Uniquely-Corrected

System and Method to Compute High Power Functions.”           The Patent Office finally

rejected that application, and Dr. Wong appealed the rejection to this court.       We

affirmed the rejection. In re Po Kee Wong, 80 Fed. App'x. 107, 108 (Fed. Cir. 2003). In

2004, the Patent Office issued a notice of abandonment regarding his application, and

Dr. Wong’s attempt to revive the application failed in 2005. He sought review in this

court, but we dismissed his appeal for want of jurisdiction because review of the denial

of a petition to revive lies in the United States District Court. See In re Po Kee Wong,

188 Fed. App'x. 981 (Fed. Cir. 2006).

                                            II

      Dr. Wong filed the complaint in this case pro se on May 30, 2008. The complaint

comprised a cover sheet, certificates of service and 106 pages of correspondence

between Dr. Wong and employees of various government agencies. On June 24, 2008,

the government moved to dismiss the complaint under Rules 12(b)(1) (lack of subject

matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief may be

granted).

      On January 12, 2009, the Court of Federal Claims issued an order requiring

Dr. Wong to show cause why his complaint should not be dismissed as requested by

the government.    The court noted that it holds a pro se plaintiff to “less stringent

standards than formal pleadings drafted by lawyers,” citing Haines v. Kerner, 404 U.S.




2009-5059                               2
519, 520 (1972), and it construed the complaint liberally to articulate the causes of

action pleaded by Dr. Wong in his complaint. The Court of Federal Claims found three

possible separate causes of action stated in the complaint.

       First, Dr. Wong asserted patent infringement by the government of his ‘232, ‘377

and ‘516 patents. The Court of Federal Claims noted that the correspondence filed with

the complaint showed unsuccessful attempts by Dr. Wong to win licenses from various

agencies to practice his patents, but the complaint did not assert any facts that would

establish use or manufacture by the government of the asserted patents. However,

rather than dismiss the patent claims for failure to state a claim under Rule 12(b)(6), as

the government then sought, the Court of Federal Claims gave Dr. Wong another

opportunity to make his patent case in response to the show cause order.

       Second, Dr. Wong’s complaint sought relief regarding his ‘657 application, which,

as noted above, was finally rejected and abandoned. In his complaint, he urged the

Court of Federal Claims to declare the ‘657 a meritorious application and to order the

Solicitor General to take steps to achieve issuance of a patent. The show cause order

noted that the Court of Federal Claims has limited authority to issue declaratory

judgments, and that Dr. Wong needed to point to a money-mandating provision of law

giving him a substantive right to permit the court to revive his ‘657 application.

Otherwise, the Court of Federal Claims stated that it would have to dismiss this aspect

of the complaint for want of jurisdiction.

       Third, Dr. Wong sought relief against the Boston Retirement Board, which

allegedly had denied him certain employment credits. His previous attempts to obtain

such relief in the Massachusetts state courts had failed.         See Wong v. Boston




2009-5059                                    3
Retirement Bd., 861 N.E. 2d 420, 421 (Mass. 2007). In response to this aspect of the

complaint, the Court of Federal Claims stated that it was unaware of any authority that

would permit it to award monetary relief to a state employee alleging wrongly withheld

employment credits.     Notwithstanding issues of res judicata, the Court of Federal

Claims gave Dr. Wong another chance to demonstrate why this aspect of the complaint

should not be dismissed for want of jurisdiction.

       In response to the show cause order, Dr. Wong averred that his patent claims

would be shown to have merit if the court would issue subpoenas to “the parties of

concerns.”   With regard to the ‘657 application issue, Dr. Wong stated that other

applications (apparently related to the ‘657) were pending at the Patent Office. He

provided no specific information with regard to his Boston Retirement Board claim.

                                             III

       On February 25, 2009, the Court of Federal Claims issued its decision on the

show cause order. The court concluded that Dr. Wong had failed to produce any facts

upon which he could sustain his allegation that the government had infringed his

patents. Accordingly, the court dismissed this claim under Rule 12(b)(6).

       Next, the court noted that Dr. Wong’s prayer for relief with regard to the ‘657

appliction fell short, because he could not identify a money-mandating provision of law

giving him a substantive right to the relief sought. The court rejected this aspect of the

complaint under Rule 12(b)(1). Finally, the court rejected Dr. Wong’s claim for withheld

state employment credits for the same reason: lack of a showing of any provision of law

that would permit the court to grant the relief sought. Thus, the court granted the

government’s motion to dismiss the complaint.




2009-5059                                4
                                              IV

       Dr. Wong timely appealed to this court, and we have jurisdiction under 28 U.S.C.

§ 1295(a)(3). We review a dismissal under Rules 12(b)(1) and (6) as an issue of law,

leaving no deference to the trial court. See Boyle v. United States, 200 F.3d 1369, 1372

(Fed. Cir. 2000). We accept the allegations in a complaint as true, construing them

favorably to the plaintiff.

       With regard to Dr. Wong’s patent infringement case, the facts at most show that

he does own patents, and that he sought to license them to various government

agencies, and that the government would need to construct facilities before it could

practice the claims of the patents. Without more, we must affirm the dismissal of the

patent infringement claims.

       As for Dr. Wong’s request that the court bring the ‘657 patent application back to

successful life, and his request for relief from the state agency, we agree that Dr. Wong

has failed to meet his burden to show jurisdiction in the Court of Federal Claims.

                                     CONCLUSION

       For the foregoing reasons, we affirm the dismissal of Dr. Wong’s complaint.

                                         COSTS

       Each party shall bear its own costs.




2009-5059                                5
