NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
BRUCE A. ROGERS,
Plain,tiff-Appellant,
V.
TRISTAR PRODUCTS, INC.,
Defendan,t-Appellee,
AND
UNITED STATES,
Defendcmt-Cross-Appellant.
2011-1494, -1495
Appeals from the United States District C0ur1; for the
EaStern District of Pennsy1vania in case n0. 11-CV-1111,
Judge Edua1'd0 C. R0bren0.
ON MOTION
Bef0re BRYSON, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
0 R D E R

ROGERS V. TRISTAR PRODUCTS 2
At issue in this motion for reconsideration is whether
the Fifth Amendment of the United States Constitution
prohibits applying the America Invents Act’s new "com-
petitive injury" requirement to false marking cases
brought by a qui tam relator prior the law’s enactment.
l.
Paul A. Rogers’s complaint against Tristar Products,
Inc. was the fourth such action he had brought on behalf
of the government under the false marking statute in the
United States District Court for the Eastern 'District of
Pennsylvania.
Rogers’s complaint alleged that his own "diligent pat-
ent search ha[d] revealed" that "Tristar’s claims of having
a patent on functional aspects of its PoWer Juicers . . . are
false and misleading." The complaint further alleged that
"[i]n marking advertisements for its products with words
or phrases claiming that its Power Juicers . . . are subject
to patent when in fact they are not, Tristar has stifled
competition . . . and has made it more difficult for com-
petitors to obtain sales and retail shelf space for compet-
ing proclucts.” As a result of these allegations, Rogers
sought "up to five hundred dollars ($500.00) for every
such offense, that is for each such article falsely marked"
as well as "costs and attorney’s fees."
To Tristar, the hundreds of cases being brought that
year alone by plaintiffs like R0gers__who himself had
suffered no direct injury from such allegations_was a
sign that, as drafted, the false marking provisions failed
to give the government sufficient control over the man-
agement of this public action. Tristar moved to dismiss
the suit on the ground that the false marking provision
violated the Take Care Clause. The district court judge
agreed and dismissed the case prior to the matter reach-
ing any merits determination.

3 ROGERS V. TRISTAR PRODUCTS
Rogers then appealed to this court. VVhile his appeal
was pending, the President signed into law the Leahy-
Smith America Invents Act, H.R. 1249, 112th Cong. (1st
Sess. 2011) (AIA), amending 35 U.S.C. § 292 to eliminate
the qui tam provision on which this action was predicated,
and making such amendment applicable to all cases
pending at the time of the law’s enactment. In a filing
with this court, Rogers conceded that he could not meet
the new standing requirement. fn light of the newly
amended law and Rogers’s concessions this panel dis-
missed Rogers’s appeal as moot and remanded with
instructions to vacate the trial court’s opinion. Rogers’s
motion for reconsideration challenges the dismissal of his
appeal as moot on the grounds that the AlA’s amend-
ments violate the Takings and Due Process Clauses.
II.
A. .
At the outset, we are required to determine whether
Congress intended for the newly amended § 292 to apply
to Rogers’s appeal.
In approaching that question, we start from the prem-
ise that a clear indication from Congress is ordinarily
required to give a statute retroactive effect. See Landgraf
u. USI Fi£m Prods., 511 U.S. 244, 272 (1994). Section 16
of the AIA provides in relevant part:
CIVIL ACTION FOR DAMAGES.--
Subsection (b) of section 292 of title 35,
United States Code, is amended to read as
follows: "(b) A person who has suffered a
competitive injury as a result of a violation of
this section may Ele a civil action in a dis-
trict court of the United States for recovery
of damages adequate to compensate for the
injury.

ROGERS V. TRISTAR PRODUCTS 4
EFFECTlVE DATE._The amendments
made by this subsection shall apply to all
cases, without exception that are pending
on, or commenced on or after, the date of the
enactment of this Act.
The “shall apply to all cases, without exception" lan-
guage of the AIA clearly shows that Congress intended to
apply the competitive injury requirement to all pending
cases, including cases pending in appellate courts. The
legislative history of the AIA confirms that Congress
intended for the competitive injury requirement to “cases
pending at any level of appeal or review." 157 Cong. Rec.
S1360-02 at S1372 (Sen. Kyl); see also generally Boumedi-
erie v. Bush, 553 U.S. 723, 7 38-39 (2008) (Relying on
legislative history in determining whether legislation was
intended to deprive federal courts of jurisdiction to enter-
tain actions).
B.
In civil cases, no litigant is entitled to insist that a
law that prevailed at the time the case began shall re-
main unchanged solely for his or her benefit N.Y. Cent.
R.R. Co. v. White, 243 U.S. 188, 198 (1917). lt follows
that under most circumstances, Congress can change the
rules in the middle of the suit, see, e.g., Chase Sec. C0rp.
v. Donaldson,, 325 U.S. 304 (1945) or even eliminate the
cause of action entirely after the case has been filed See,
e.g., Hoclges v. Snyder, 261 U.S. 600, 603-04 (1923).
Rogers urges us to hold that the Takings Clause pro-
hibits such a result in this case on the assertion that by
initiating the lawsuit it has become property. In fact,
however, no “vested" right attaches until there is a final,
unreviewable judgment, so it is of no moment that Rogers
expended effort and resources in Eling and pursuing the
complaint. See McCull0ugh v. Virginia, 172 U.S. 102,
123-24 (1898); Axel Johns0n Inc. v. Arthur An,olerson &

5 ROGERS V. 'I‘RISTAR PRODUCTS
Co., 6 F.3d 78, 84 (1993) (“[N]ot all judgments . . . are
final for Fifth Amendment and separation of powers
purposes. Rather, a case remains ‘pending’ and open to
legislative alteration, so long as an appeal is pending or
the time for filing an appeal has yet to lapse").
That Rogers brought a qui tam action does not alter
that conclusion. In the analogous context of the False
Claims Act, courts long ago rejected the argument that a
constitutional protected property right vests upon initiat-
ing suit. See, e.g., United States ex rel. Boyorsky u.
Brooks, 210 F.2d 257, 258 (3d Cir. 1954); Sherr v. An,a-
concla Wire & Coble Co., 149 F.2d 680 (2d Cir. 1945);
United States ex rel. Roclrigu,ez v. Weekly Publ’ns, In.c.,
144 F.2d 186 (2d Cir. 1944).
Rogers points out that the Supreme Court has de-
scribed qui tam statutes as "effecting a partial assign-
ment of the Government’s damages claim." _ Vermont
Agency of Nat. Res. u. United States ex rel. Steven,s, 529
U.S. 765, 773 (2000); see also Stauffer u. Brooks Bros., 619
F.3d 1321, 1325 (Fed. Cir. 2010) (applying same justifica-
tion for standing to the False Marking Statute). From
that premise, Rogers argues that the False Marking
Statute “conveys a specific property right to the relator[.]"
That description of the assignment does not establish
that the AIA effected a taking of Rogers’s constitutionally
protected property The plaintiffs in Bayarsky, Sherr, and
Rodriguez were similarly partial assignees of any dam-
ages recovered before Congress amended the False Claims
Act in 1943 to allow the government to take over the
plaintiffs claims. The statutory "assignments” were in
effect held to be revocable prior to final judgment. See
Roclrigu,ez, 144 F.2d at 188 ("His privilege of conducting
the suit on behalf of the United States and sharing in the
proceeds of any judgment recovered, was an award of
statutory creation, which, prior to final judgment was
wholly within the control of Congress."). The grant of

ROGERS V. TRISTAR PRODUCTS 6
public power authorized to the qui tam plaintiff was
narrowly construed to preserve the exercise of sovereign
authority.
Rogers also argues that the retroactive elimination of
his claim violates the Due Process Clause. Rogers con-
tends that by eliminating pending false marking actions,
the new amendments "absolved companies such as Tris-
tar, [from] any liability for marking unpatented articles
with deceitful intent, thereby stifling competition and
true innovation of small businesses and inventors."
Apart from expressing disagreement with Congress’s
policy choice, Rogers has not explained how Congress
acted irrationally in making the competitive standing
requirement apply to all pending claims. By making the
False Marking Act amendments retroactive, Congress
was in significant part attempting to reduce the litigation
expenditures in the large number of complaints_filed, but
not yet subject to a final judgment. See 157 Cong. Rec.
S1360-02 at S1372 (Sen. Kyl) (“[B]ecause the Federal
Ci:rcuit’s recent decision in Forest Gr0up, Inc. v. B0n, Tool
Co., 590 F.3d 1295, Fed. Cir. 2009, appears to have cre-
ated a surge in false marking qui tam litigation, the
changes made by paragraph (1) of section 2(k) of the bill
are made fully retroactive by paragraph (2)”); see also 157
Cong. Rec. S5319-03 at S5320 (Sen. Kyl) (“The America
Invents Act reins in abuses that are reflected in a recent
surge in false marking litigation. lt allows such suits to
be brought only by those parties who have actually suf-
fered a competitive injury as a result of false marking.”).
That objective was a legitimate justification for mak-
ing the AIA amendments to § 292 retroactive, See Loncl-
graf, 511 U.S. at 267-68 (“Retroactive provisions often
serve entirely benign and legitimate purposes" including
"to simply give comprehensive effect to a new law Con-
gress considers salutary."); Pension. Benefit Guar. Co.
Corp. u. R.A. Gray & C0., 467 U.S. 717, 730 (1984) (“In

7 ROGERS V. TRISTAR PRODUCTS
particular, we believe it was eminently rational for Con-
gress to conclude that the purpose of the MPPAA could be
more fully effectuated if its withdrawal liability provisions
were applied retroactively"). We discern no due process
infirmity in that decision.
Accordingly,
IT ls 0R:oERED THA'1‘:
The motion for reconsideration is denied.
FoR THE CoUR'r
 02  /s/ Jan Horbaly
Date J an Horbaly
Clerk
ccc Edward T. Kang, Esq.
Edward P. Bakos, Esq.
Douglas N. Letter, Esq. ma c0URf°l|lFlEPPEAlS ma
19 Tl'lE FEDERAL ClRCUlT
MAY 02 ZU12
.lAN HllHBAl.Y
CLERK
S

