UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUl\/IBIA

Ngv g 2 2011
C|erk, U.S. District and
Piero A. Bugoni, ) Bankruptcy Courts
)
P1aintiff, )
)
v. § C1v11Act1onNo.  1 [Hnr;
David Kappos el al., )
)
Defendants. )
MEMORANDUM OPINION

This matter is before the Court on plaintiffs pro se complaint and application to proceed
in forma pauperis. The Court will grant plaintiff s application and dismiss the complaint
Pursuant to 28 U.S.C. § 191 5(e), the Court is required to dismiss a complaint upon a
determination that it, among other grounds, fails to state a claim upon which relief can be
granted. 28 U.S.C. § l9l5(e)(2)(B)(ii).

Plaintiff, a resident of Boca Raton, Florida, sues the Director of the U.S. Patent and
Trademark Office ("PTO") in his official capacity, the National Football League, Incorporated,
and four individuals "believed to be located in Gerrnany."‘ Compl. W 3-8. Plaintiff alleges that
"sometime in 2008," he "conceived" an invention while watching football at a local sports bar
and "likely drinking beer." Ia’. wl 13, 27. The invention appears to be a camera capable of video

and audio transmission that "may be installed in a [sic] NFL Regulation Football . . . .” Ia'. 1 20.

‘ Plaintiff brings his claims under 42 U.S.C. § 1983, and states that the Court has
jurisdiction pursuant to the Ninth, Tenth and Fourteenth Amendments to the Constitution, as well
as § 1983 and 28 U.S.C. §§ 1343, 2201. Compl. at 1. Plaintiffhas stated no facts to support
claims under § 1983 or any of the foregoing provisions, but the Court is satisfied that it has
subject matter jurisdiction. See Dubost v. U.S. Patent and Trademark Oj§’ice, 777 F.2d l56l,
1565 (Fed. Cir. 1985) (concluding "that the district court had jurisdiction over [patent fee] issue
under . . . 28 U.S.C. § l338(a).") (citations omitted).

Plaintiff alleges that he produced the "ear1iest design documents" in 2009, paid for and was
"granted" a trademark number on May 22, 2011, and applied for a patent on August 15, 2011,
but he could not pay the fee; nor can he pay it "before the application is abandoned." ld. 1111 14-
16.

On July 25, 2011, plaintiff allegedly purchased the internet domain name BallCam.com,
where he then published the prototype of his invention. Id. 1111 18-1 9. On October 14, 201 1, an
article was published on the internet, allegedly naming the individual defendants "as ‘inventors`
of a device that is of the same nature as described by [plaintiff’ s] Patent Application." Id. 11 20.
Plaintiff seeks, among other relief, to enjoin the non-govemmental defendants “‘from using [his]
intellectual property, or claiming intellectual property Rights to [his] invention," id. 11 11, and to
compel the PTO to waive the patent application fee. ]d. 11 10.

To the extent that plaintiff is seeking a writ of mandamus under 28 U.S.C. § 1651 against
the PTO Director, he has not cited authority showing that he has a "‘clear and indisputable’ right
to relief," In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005), and the applicable statute belies
such a claim. A provisional patent application "must be accompanied by the fee required by
law," 35 U.S.C. § 1 11(b)(3), and "Congress has accorded no authority to the Commissioner to
waive the prescribed payment." Boyden v. Comm 'r of Patents, 441 F.2d 1041, 1044 (D.C. Cir.
1971). If the fee is not submitted within a time period prescribed by the Director, "the
application shall be regarded as abandoned . . . ." 35 U.S.C. § lll(b)(?s)(C). Given the "clear
statutory requirement" of payment for a patent application, "mandamus [to compel a fee waiver]

surely is not available." Boya’en, 441 F.2d at 1044-45.

Because plaintiff s claims against the non-govemmental defendants necessarily depend
on a patent that does not exists, the Court finds that as to those claims, plaintiff cannot establish
his legal standing to sue. See Acme Hz`ghway Products Corp. v. Maurer, 524 F. Supp. 1130,

1131 (D.D.C. 1981) ("The ‘case or controversy’ requirement is met in patent cases when a ‘c1aim
or charge of infringement has been made, directly or indirectly’ by the person entitled to enforce
the patent.") (citation omitted). Hence, the case will be dismissed. A separate Order

accompanies this Memorandum Opinion.

 

Date: October B, 201 1

