ORIGINAL

am the @Hm'teh $tate§ Qtuurt at fehetal @Iaims
No. 14-696C 

(Filed: February 20, 2015)

************************** 
* U s ooum OF
TIMOTHY SHERIDAN, * FEbéRALCLAtMS
*
. . *
Plamtlff’ * Motion to Dismiss; Patent Infringement;
* 22 U.S.C. § 2356; 28 U.S.C. § 1498(a); For
v' * the Beneﬁt of the Government;
THE UNITED STATES * Authorization or Consent.
9
*
Defendant. *
*

**************************

Timothy Sheridan, Philadelphia, PA, pr_o g.

Joyce R. Branda, John Fargo, Stephen M. Chong, United States Department of Justice,
Civil Division, Commercial Litigation Branch, PO. Box 460, Benjamin Franklin Station,
Washington, DC, 20044, for Respondent. Gag L. Hausken, United States Department of
Justice, of Counsel.

OPINION AND ORDER OF DISMISSAL

 

WILLIAMS, Judge.

This case comes before the Court on Defendant’s motion to dismiss the Complaint.
Plaintiff m sq Timothy Sheridan claims that the Government is required to compensate him for
the infringement of his patent by numerous private parties. However, Plaintiff has not alleged
facts suggesting that the United States itself used or manufactured his claimed invention or
authorized or consented to such use or manufacture by any person or entity. Because Plaintiff
has failed to allege conduct by the Government subject to this Court’s jurisdiction, this action is
dismissed.

Mound

Plaintiff is both the owner of US. Patent No. 7,415,982 (issued Aug. 26, 2008) (“the ‘982
Patent”), entitled “Smokeless pipe,” and inventor of this device. The ﬁeld of invention generally
relates to

 

a smokeless pipe, and more speciﬁcally to a smokeless pipe that
utilizes a combination of heat generated from a conventional
butane lighter and an airstream to provide a noncombustible and

nonpyrolytic method for heating and inhaling the active volatile
compounds and components of tobacco or other smoking materials
without the ingestion of toxic and carcinogenic compounds.

‘982 Patent col. 1 11. 5-12. The invention claimed in the ‘982 Patent comprises

[a] smokeless pipe for the ingestion of tobacco products which
includes an elongated hollow member having a proximal end, a
distal end, and a length therebetween. The elongated hollow
member includes a constricted portion along its length to retain the
tobacco products within, a ﬁrst opening to enable a user to draw
from, a ﬁll port to enable the user to ﬁll the hollow member with
tobacco products, and a bulbous chamber.

g, Abstract. The invention “permits non-combustion with a heat source,” and is for “contained
convection ‘vaporizing.’” Compl. 3. Typical embodiments are sold as vaporizers. I_d_. at 4.
Plaintiff markets a product under the trade name “Ubie” that he alleges is an embodiment of the
‘982 Patent. Ii at 1.

In his Complaint, Plaintiff asserts that the ‘982 Patent has met “all forms of infringement
and monopolistic practice including: counterfeits, disguises, use of brand ‘Ubie,’ cheated
advertising, cheated search listings and even Government attacks to claim the proceeds.” I_d.
Plaintiff alleges that websites—“too numerous to litigate”—such as Amazon® and eBay®, are
selling his patented invention without authorization. Q at 25. Plaintiff asserts that he was
denied service from Google® and Bing®, and that Twitter® “hides [his] page in search and jams
[his] ads.” g at 23.

Plaintiff asks the Government to “defend [his] rights and honor its obligations.” Id. at 24.
Plaintiff continues:

There have been paraphrased patents which the patent ofﬁce
refused to correct. The post ofﬁce tripled my postage while others
went up 4%. (In 2010 the post ofﬁce claimed they were out of
money. So they doubled my postage then claimed they found 300
Billion they had misplaced . . . .

 

Even the post ofﬁce was manipulated to remove the “delivery
conﬁrmation form”. —So I have to stand in line every time.
(Instead of just dropping off) They had seven forms. They
removed the one I used. Recently, everyone’s envelope (under an
ounce) went up a “penny”, mine went up another Dollar! Its
rampant dishonesty at every turn. The whole market has been
cheated. And the US condones use of my patent until I go to court.

g at 23 (emphasis in original).

Plaintiff alleges that the Government’s investments abroad facilitated infringement:

The US investments “connect” with infringement by supplying
assistance to supply the wood, paint, metals, plastics, oil and many
primary products like envelope glue, computers and fabrication.
This item connects with all US investment efforts abroad because
they facilitate economic power of pirates and suppliers precursor
materials for their trade.

Such investment (as read) provides value, materials and productive
capacity that is used by pirates in the US, even by virtue of
assisting businesses which supply raw materials to infringers such
as “gas and oil” or minerals for ink and dyes or gum for envelopes.
Or even bananas for the lunch room.

ﬁat 17.

Plaintiff cites injuries his father suffered and asks the Court to stop the Government from
murdering him:

The matter caused illnesses which appear similar to when my
father retired in 1995. The government refused to give him his
social security. They said it was because he had purchased an
additional annuity to supplement his retirement. A veteran and 35
year career man at the social security administration, they stole his
social security. He died 5 years later. I now see I am experiencing
the same symptoms. I am asking the court to stop them from
murdering me.

Q at 23. Plaintiff seeks damages between $30,703,200,000 and $496,020,000,000 for
infringement of his patent from the United States. Li at 11.

Plaintiff does not allege any acts of infringement by the Government, or by a
Government contractor or supplier. Nor does Plaintiff allege facts suggesting that the
Government authorized or consented to the use or manufacture of the patented invention by any
person or entity.

Discussion

This Court Lacks Jurisdiction over Plaintiff’s Claims.

 

Subject-matter jurisdiction must be established by the plaintiff at the outset of any case
before the Court proceeds to the merits of the action. & Hardie v. United States, 367 F.3d
1288, 1290 (Fed. Cir. 2004). “The United States, as sovereign, is immune from suit save as it
consents to be sued.” United States v. Sherwood, 312 US. 584, 586 (1941). A waiver of
immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395
US. 1, 4 (1969). “[A] waiver of sovereign immunity is to be strictly construed, in terms of its
scope, in favor of the sovereign.” Dep’t of the Army v. Blue Fox, 525 US. 255, 261 (1999).

The Tucker Act, 28 U.S.C. § 1491(a)(1), provides that this Court

shall have jurisdiction to render judgment upon any claim against
the United States founded either upon the Constitution, or any Act
of Congress or any regulation of an executive department, or upon
any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.

The Tucker Act does not, however, create a stand-alone, substantive right, enforceable against
the United States for monetary relief. Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir.
2007) (quoting United States v. Testan, 424 US. 392, 398 (1976)). “[A] plaintiff must identify a
separate source of substantive law that creates the right to money damages. In the parlance of
Tucker Act cases, that source must be ‘money-mandating.”’ Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (internal citations omitted).

22 U.S.C. § 2351

Plaintiff asserts jurisdiction under 22 U.S.C. § 2351. Section 2351, entitled
“Encouragement of Free Enterprise and Private Participation,” states policies for promoting
economic progress. It does not, however, mandate monetary relief. As such, this Court lacks
jurisdiction over claims predicated on § 2351, and to the extent that Plaintiffs Complaint raises
such claims, they are dismissed.

22 U.S.C. §2356

Plaintiff also invokes 22 U.S.C. § 2356 as a basis for subject-matter jurisdiction. This
provision is part of the Foreign Assistance Act of 1961, an Act “[t]o promote the foreign policy,
security, and general welfare of the United States by assisting peoples of the world in their
efforts toward economic development and internal and external security, and for other purposes.”
Pub. Law 87-195, 75. Stat. 424. Section 2356 “is designed to meet those cases in which patents
or information protected by proprietary rights are disclosed by the US. Government in
connection with furnishing assistance under the bill [S. 1983].” Hughes Aircraft Co. v. United
States, 209 Ct. Cl. 446, 485 (1976) (quoting S. Rep. No. 87-612, at 30 (1961), as reprinted in
1961 U.S.C.C.A.N. 2501)).

While Plaintiff generally alleges that the Government aided private inﬁingers “in
connection with furnishing assistance under this Act” by bolstering trade, promoting businesses
of alleged infringers and enabling piracy, such conduct does not trigger Government liability
under § 2356. Plaintiff does not allege any disclosures of his patented technology by the
Government that led to the claimed infringement, or any speciﬁc action the Government took
with respect to his patented invention. Plaintiff acknowledges this lack of a direct link between a
Government act and the alleged infringement, but claims that Government actions are connected
to the alleged infringement by private parties because “[c]learly all businesses enjoy some ‘direct
or indirect promotion’ by the US.” Compl. 20. Plaintiff s generalized allegations are
insufficient to bring his claim within this Court’s jurisdiction under § 2356. Even under a liberal
reading of the Complaint, Plaintiff has failed to allege any Governmental conduct that is
actionable under § 2356.

28 U.S.C. 1498 a

28 U.S.C. § 1498(a) provides a remedy against the Federal Government for the
unlicensed “use or manufacture of an invention described in and covered by a patent of the
United States by a contractor, a subcontractor, or any person, ﬁrm, or corporation for the
Government and with the authorization or consent of the Government.” 28 U.S.C. § 1498(a)
(2014). The Federal Circuit has held that there are two criteria for application of § 1498(a) to the
activity of private parties: (1) use or manufacture for the beneﬁt of the Government, and (2)
authorization or consent of the Government. E Advanced Software Designs Corp. v. FRB of
St. Louis, 583 F.3d 1371, 1376, 1378 (Fed. Cir. 2009).

Although Plaintiff generally alleges that a number of private parties through websites
“sell the patented ‘hot air through holes’ technology,” he fails to allege any conduct by the
Government that would make the Government liable for such claimed infringement. Compl. 25-
28. While neither a contractual nor an agency relationship is necessary for the Government to
accept infringement liability for actions of private parties, Plaintiff must demonstrate that the
“activities by ‘any person, ﬁrm, or corporation’ [are] for the beneﬁt of the government.” Q at

1378-79 (emphasis added). In Iris Comoration v. Japan Airlines Corporation, the Federal Circuit

found that acts of an airline were “for the Government” because “[Japan Airlines]’s examination
of passports improves the detection of fraudulent passports and reduces demands on government
resources. This, in turn, directly enhances border security and improves the govemment’s ability
to monitor the ﬂow of people into and out of the country.” 769 F .3d 1359, 1362 (Fed. Cir.
2014); se_e Advanced Software, 583 F.3d at 1378 (ﬁnding that technology used by a company
and three federal reserve banks to encode and decode Treasury checks was for the beneﬁt of the
Government, citing the national interest in averting fraud in Treasury checks).

Plaintiff argues that the alleged infringing activities were for the beneﬁt of the
Government because “[t]he United States has beneﬁted from infringement in stimulus, jobs, and
revenue.” Compl. 29. However, these beneﬁts are wholly unrelated to the invention claimed in
the ‘982 Patent or any Government interest or function associated with such invention. Where
beneﬁts to the Government are merely an incidental effect of private conduct, they do not
constitute “use or manufacture for the Govermnent” within the meaning of § 1498. E
Advanced Software, 583 F.3d at 1379. Even where “the government has an interest in the
program generally, or funds or reimburses all or part of [that program’s] costs,” the
Govemment’s interest is too remote “to make the government the program’s beneﬁciary for the
purposes underlying § 1498.” Larson v. United States, 26 Cl. Ct. 365, 369 (1992).

Nor has Plaintiff pled facts to suggest that the Government authorized or consented to
infringement of the ‘982 Patent by private parties within the meaning of § 1498. Plaintiff alleges
that the United States “consents” to infringement by compelling a patent holder to ﬁle suit
because the Government generally supports trade engaged in by infringers. Compl. 16. In his

response to the motion to dismiss, Plaintiff elaborates on his broad view of “consent” under §
1498:

Sec 1498(a) provides relief if the government only “consents” to
infringement. The government has not enforced a ban on
infringement.

Selective enforcement, for whatever reason, is indistinguishable
from consent. Thus, under 1498(a) there is reasonable belief that
tacit “consent” is present at least in part.

Resp. 12-13.

Plaintiff appears to argue that the United States “consents” to infringement by not
policing infringers or enforcing a statutory ban on infringement. In so arguing, Plaintiff attempts
to foist responsibility on the Government to ferret out and remedy the universe of patent
infringement. This is not the Government’s role. Rather, by statute, the Government only
assumes liability for patent infringement when it uses or manufactures a patented invention itself
or authorizes or consents to a private party’s infringement for the Govemment’s beneﬁt. As the
Court of Claims recognized:

“‘authorization or consent’ on the part of the Government may be
given in many ways other than by letter or other direct form of
communication”—e.g., by contracting ofﬁcer instructions, by
speciﬁcations or drawings which impliedly sanction and
necessitate infringement, by post hoc intervention of the
Government in pending infringement litigation against individual
contractors.

Hughes Aircraft, 209 Ct. Cl. at 464-65 (quoting II Bulletin of the Judge Advocate General 75
(1943), SPJGP 1943/881 (Feb. 8, 1943)). However, because a waiver of sovereign immunity
must be narrowly construed, authorization or consent under § 1498 “‘requires explicit acts or
extrinsic evidence sufﬁcient to prove the govemment’s intention to accept liability for a speciﬁc
act of inﬁingement.”’ Larson, 26 Cl. Ct. at 369-70 (quoting Auerbach v. Sverdrup Cogp., 829
F.2d 175, 177 (DC. Cir. 1987)). Here, Plaintiff has not alleged any facts that show the

Govemment’s intention to accept liability for a speciﬁc act of claimed infringement of the ‘982
Patent.

In sum, Plaintiff does not allege facts that meet either of the two criteria for application of
§ 1498 to the activity of private parties: (1) use or manufacture for the beneﬁt of the
Government, and (2) authorization or consent of the Government. Plaintiffs allegations are
therefore insufﬁcient to bring his claim within this Court’s jurisdiction under § 1498.

m

Defendant’s motion to dismiss is GRANTED.l The Clerk is directed to dismiss this

action for lack of jurisdiction.2 2) .
MA
Judge

 

RY LLEN COSTER WILLIAMS

1 All other pending motions in this case have been rendered moot by this decision.

2 Alternatively, the Complaint is subject to dismissal under Rule 12(b)(6), as Plaintiff has

failed to state a claim upon which relief can be granted. Plaintiff does not state a plausible claim
for relief under § 2356. Plaintiff does not allege any Government activities that fall within the
provision’s requirement that the patent was infringed “in connection with furnishing assistance
under [the Foreign Assistance Act],” or any disclosures of a patent or proprietary information.

Likewise, Plaintiff does not state a plausible claim for relief under § 1498. Plaintiff does
not allege facts that warrant the application of § 1498, as he fails to allege either infringement by
private parties that has a sufﬁciently direct beneﬁt to the Government, or facts showing the
Government’s authorization of or consent to private parties’ infringement.

