            In the United States Court of Federal Claims
                                         No. 12-910C

                                    (Filed: August 15, 2013)

                                (NOT TO BE PUBLISHED)


 **********************************
                                              )
 SAMY GHARB,                                  )
                                              )
                       Plaintiff,             )
                                              )
           v.                                 )
                                              )
 UNITED STATES,                               )
                                              )
                       Defendant.             )
                                              )
 **********************************

       Samy Gharb, pro se, Zürich, Switzerland.

       Scott Bolden, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Stuart F. Delery, Principal Deputy Assistant Attorney General, and John J. Fargo,
Director, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C.


                                    OPINION AND ORDER

LETTOW, Judge.


        Samy Gharb seeks to recover damages from the United States (“the government”) for
alleged infringement of United States Patent No. 6,552,654 (“’654 patent”). The patent is
entitled “Security System with a Mobile Telephone” and pertains to a security system employing
programmable logic controllers (“PLCs”) and the global system for mobile communications
(“GSM”) to sense intrusions into vehicles. This is one of five cases filed by Mr. Gharb in this
court against the government alleging infringement of the ’654 patent.1 In this case, Mr. Gharb


       1
        The other cases have been docketed as Nos. 12-911C, 12-913C, 13-89C, and 13-100C.
The last-filed case has been dismissed for failure to state a claim. See Gharb v. United States,
                                                  1
claims that Unitronics (1989) (R”G) Ltd. and Unitronics, Inc. (collectively “Unitronics”),
manufacturers of PLCs, have infringed the ’654 patent and that the federal government is liable
for damages under 28 U.S.C. § 1498(a) and other statutes. Compl. at 3.2 In earlier litigation
between Unitronics and Mr. Gharb over the ’654 patent, Unitronics obtained a ruling that it did
not infringe the patent. See Unitronics (1989) (R”G) Ltd. v. Gharb, 511 F. Supp. 2d 123 (D.D.C.
2007), aff’d, 318 Fed. Appx. 902 (Fed. Cir. 2008).

        Pending before the court is the government’s motion to dismiss pursuant to Rule 12(b)(6)
of the Rules of the Court of Federal Claims (“RCFC”).3 For the reasons set forth below, the
government’s motion is granted and plaintiff’s complaint is dismissed.
                                           BACKGROUND

       The ’654 patent was granted on April 22, 2003, but it expired on April 22, 2007. See
Unitronics (1989) (R”G) Ltd. v. Gharb, 532 F. Supp. 2d 25, 26 (D.D.C. 2008) (“Mr. Gharb
allowed his patent to expire by failing to pay the required maintenance fees.”).

        The prior Unitronics litigation has a direct bearing on this case. In 2006, after learning
that certain of Unitronics’ PLCs4 communicate using the Global Sytem,5 Mr. Gharb accused
Unitronics and its distributors of infringing upon his patent. See Unitronics, 318 Fed. Appx. at

No. 13-100C, Unpublished Opinion and Order (June 26, 2013), ECF No. 17. The other cases
remain pending.
       2
           Section 1498(a) of Title 28 provides in pertinent part:

       Whenever an invention described in and covered by a patent of the United States
       is used or manufactured by or for the United States without license of the owner
       thereof or lawful right to use or manufacture the same, the owner’s remedy shall
       be by action against the United States in the United States Court of Federal
       Claims for the recovery of his reasonable and entire compensation for such use
       and manufacture.

28 U.S.C. § 1498(a).
       3
         The government also invokes RCFC 41(b) as a ground for dismissal, arguing that Mr.
Gharb’s complaint violates this court’s rules because the complaint consists of 109 pages of
allegations and exhibits that are not well organized. See Def.’s Mot. to Dismiss Pl.’s Compl. at 4
(citing the “short and plain statement” requirements of RCFC 8(a)). Mr. Gharb is proceeding
pro se, and in light of his status, this ground for dismissal is rejected because the court can
decipher his claim.
       4
        PLCs are computer devices used in industrial control systems. See Unitronics, 511 F.
Supp. 2d at 126.
       5
        The Global System or “GSM” refers to cellular communication networks by which
information is conveyed to mobile telephones. See Unitronics, 511 F. Supp. 2d at 126.

                                                   2
903. Unitronics subsequently requested, and was granted, a declaratory judgment of
noninfringement from the United States District Court for the District of Columbia. Unitronics,
511 F. Supp. 2d at 126. In December of 2008, the district court issued a permanent injunction
prohibiting Mr. Gharb from “bringing suit under [the ’654 patent] against Unitronics or
Unitronics’ customers based on their manufacture, use, sale, offers to sell, or importation of
PLCs.” Unitronics, 532 F. Supp. 2d at 27-28.

        Mr. Gharb appealed to the United States Court of Appeals for the Federal Circuit, which
affirmed, finding that Unitronics did not infringe Mr. Gharb’s patent. See Unitronics, 318 Fed.
Appx. at 905. The court addressed Mr. Gharb’s contention that “any PLC that is able to
communicate over the GSM network infringes his patent, because part of his patent discloses
PLCs communicating over GSM.” Id. at 904. The Federal Circuit concluded that Mr. Gharb’s
assertion was “premised on an incorrect understanding of the law.” Id. Mere sale of PLCs that
communicate using the Global System does not constitute infringement of the ’654 patent. Id. at
905 (citing Freedman Seating Co. v. Am. Seating Co., 420 F.3d 1350, 1358 (Fed. Cir. 2005)).
To prove infringement, Mr. Gharb was required to show that Unitronics’ devices met all of the
limitations of the broadest claim of the ’654 patent, claim 1, which describes “a security system
for monitoring objects.” Id. at 904. Because there was “no evidence in the record suggesting
that Unitronics made or sold any type of security system at all,” the Federal Circuit found
summary judgment of noninfringement in favor of Unitronics to be appropriate. Id. at 905.6

                                   STANDARD FOR DECISION

        A complaint will survive a motion to dismiss for failure to state a claim if it “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). When considering such a motion, “the court must accept as true the complaint’s
undisputed factual allegations and should construe them in a light most favorable to the
plaintiff.” Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v.
Allain, 478 U.S. 265, 283 (1986); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir.
1991)).

        Unlike factual allegations, however, legal conclusions and “recitals of the elements of a
cause of action” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). The court first sets aside any conclusory or formulaic components of
a plaintiff’s complaint and then determines whether the factual allegations that remain “plausibly
suggest an entitlement to relief.” Id. at 681; see also Bussie v. United States, 96 Fed. Cl. 89, 95

        6
         The Federal Circuit’s affirmance of noninfringement in the Unitronics case has not
deterred Mr. Gharb from initiating patent infringement actions against various other
manufacturers of PLCs. See, e.g., Gharb v. Mitsubishi Elec. Automation, Inc., No. 10 C 07204,
2012 WL 1986435 (N.D. Ill., June 4, 2012); Gharb v. Schneider Elec. SA, No. 10 C 7637, 2011
WL 6156746 (N.D. Ill., Dec. 12, 2011); Gharb v. Rockwell Automation, No. 11-cv-405, 2011
WL 5373989 (N.D. Ill., Nov. 4, 2011). Mr. Gharb’s complaints in these cases were functionally
identical to those in the District Court for the District of Columbia and Federal Circuit and, as a
result, were all dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

                                                    3
(2011) (describing Iqbal’s two-pronged approach to evaluating the sufficiency of a complaint),
aff’d, 443 Fed. Appx. 542 (Fed. Cir. 2011).

                                           ANALYSIS

        Construing Mr. Gharb’s complaint as liberally as possible in his favor, his complaint falls
far short of the factual allegations necessary to support a facially plausible claim of infringement
against the government. Mr. Gharb has yet again brought an infringement claim premised
entirely on the sale of PLCs that use the Global System for cellular communications, despite the
Federal Circuit’s explicit statement in its prior opinion that such allegations are insufficient to
state a claim for infringement of the ’654 patent. See Unitronics, 318 Fed. Appx. at 905 (“[A]
PLC communicating over GSM alone would not infringe the ’654 patent.”).

        Additionally, the complaint contains no facts to support an inference that Mr. Gharb has a
plausible claim against the United States for infringement under 28 U.S.C. § 1498. Mr. Gharb
does not allege that the United States manufactured or purchased devices that infringe the ’654
patent. In fact, Mr. Gharb mentions the government only twice in his 109-page complaint, once
as one of forty-two defendants and a second time when he states “[t]he [g]overnment is directly
liable for infringement by its contractors.” Compl. at 54.7 Legal conclusions such as these are
not adequate to state a claim for relief. Iqbal, 556 U.S. at 678. Because the court cannot draw a
reasonable inference that the United States is liable for patent infringement, Mr. Gharb’s
complaint fails to state a claim under 28 U.S.C. § 1498(a) as a matter of law.

                                         CONCLUSION

      For the reasons set forth above, defendant’s motion to dismiss pursuant to RCFC 12(b)(6)
is GRANTED. The Clerk’s Office is directed to enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.


                                                      _________________________
                                                      Charles F. Lettow
                                                      Judge




       7
         Mr. Gharb adds in his Sur-Reply filed June 13, 2013, the assertion that “Unitronics ha[s]
many contracts with the US government.” Pl.’s Sur-Reply to Def.’s Mot. to Dismiss at 2.
Whether or not that asseveration is accurate, Mr. Gharb points to no contract by which
Unitronics has supplied products that infringe his patent. Furthermore, if the federal government
were a customer of Unitronics, the permanent injunction entered by the District Court for the
District of Columbia protects the company’s customers from such suits by Mr. Gharb. See
Unitronics, 318 Fed. Appx. at 903.
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