                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2007-1377


                                   JAMES H. CLARK,

                                                        Plaintiff-Appellant,

                                            v.


            FLOYD CRUES, STEPHEN WARMACK, SHANE HOPPER,
    SYLVIA SHEAD, MELVIN GUNTER, ST. LOUIS PUBLIC SCHOOL DISTRICT,
             BOARD OF EDUCATION OF THE CITY OF ST. LOUIS,
     DARNETTA CLINKSCALE, VINCENT SCHOEMEHL, RONALD JACKSON,
             ROBERT ARCHIBALD, and KENNETH C. BROSTRON,

                                                        Defendants-Appellees.


      James H. Clark, of St. Louis, Missouri, pro se.

       James C. Hetlage, Lashly & Baer, P.C., of St. Louis, Missouri, for defendants-
appellees.

Appealed from: United States District Court for the Eastern District of Missouri

Judge Jean C. Hamilton
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2007-1377

                                  JAMES H. CLARK,

                                                      Plaintiff-Appellant,

                                           v.

            FLOYD CRUES, STEPHEN WARMACK, SHANE HOPPER,
    SYLVIA SHEAD, MELVIN GUNTER, ST. LOUIS PUBLIC SCHOOL DISTRICT,
             BOARD OF EDUCATION OF THE CITY OF ST. LOUIS,
     DARNETTA CLINKSCALE, VINCENT SCHOEMEHL, RONALD JACKSON,
             ROBERT ARCHIBALD, and KENNETH C. BROSTRON,

                                                      Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Missouri in case
no. 4:05-CV-1344, Judge Jean C. Hamilton.

                           __________________________

                             DECIDED: January 8, 2008
                           __________________________

Before LINN, DYK, and PROST, Circuit Judges.

PER CURIAM.

      James H. Clark (“Clark”) appeals from a final judgment of the United States

District Court for the Eastern District of Missouri. Clark v. Crues, No. 4:05-CV-1344

JCH, slip op. (E.D. Mo. Mar. 23, 2007) (“Memorandum & Order”). In that decision, the

court granted summary judgment to the defendants, dismissing Clark’s claims of

inducement of patent infringement, willful patent infringement, copyright infringement,

and conspiracy in violation of 42 U.S.C. §§ 1983 and 1985, and declining to exercise

supplemental jurisdiction over Clark’s remaining claims. Because the record presents
no genuine issue of material fact and the defendants are entitled to judgment as a

matter of law, see Fed. R. Civ. P. 56(c), we affirm.

       This appeal concerns a “behavioral modification program,” known as the “Out of

Area Program,” that Clark claims he developed and implemented while he was

employed by the St. Louis, Missouri public school system as a probationary teacher.

The Out of Area Program consists of a set of written materials intended for use by

teachers and other school personnel to help control and modify disruptive behavior by

students. After Clark’s employment was terminated for reasons that the defendants

assert are unrelated to this appeal, Clark sued the defendants, asserting, inter alia,

patent and copyright infringement.     On appeal, Clark challenges the district court’s

dismissal of his patent and copyright claims. He also alleges that it was an improper

conflict of interest for Defendant Kenneth Brostron to serve as counsel for his co-

defendants, that the district court erroneously failed to consider claims against an entity

known as “Board of Education of the City of St. Louis (former),” that the district court

erroneously docketed certain pleadings, that the district court failed to communicate

adequately with him, and that the defendants tortiously interfered with his business

relationships.

       As to the copyright claim, the district court held that the “Out of Area Program

constitutes a business idea, excluded from copyright protection under 17 U.S.C.

§ 102(b).” Memorandum & Order at 10. We agree. The Complaint alleges that the

defendants “used the same concept referencing Hall Pass procedures” as in the Out of

Area Program. See id. at 9. Such general concepts and ideas are beyond the purview

of copyright law. See Mazer v. Stein, 347 U.S. 201, 217 (1954) (“[A] copyright gives no




2007-1377                                2
exclusive right to the art disclosed; protection is given only to the expression of the

idea—not the idea itself.”). At best, Clark alleges that his hall pass, Appellant’s Br.

attach. 24d, and a hall pass that was used in the 2004–05 school year at Roosevelt

High School, id. attach. 24e, share language that restricts the use of hall passes during

the first and last ten minutes of class. However, the passes are not otherwise alike, and

the district court correctly concluded that this limited use of similar functional language

does not constitute copyright infringement even if, as Clark alleges, the defendants

deliberately copied Clark’s ideas. See CMM Cable Rep, Inc. v. Ocean Coast Props.,

Inc., 97 F.3d 1504, 1519–20 (1st Cir. 1996) (denying copyright protection to phrases

such as “clock in” used in a radio promotional contest as an employment metaphor, and

stating that “copyright law denies protection to ‘fragmentary words and phrases’ and to

‘forms of expression dictated solely at functional considerations’ on the grounds that

these materials do not exhibit the minimal level of creativity necessary to warrant

copyright protection”).

       As to the patent claims, the district court held that Clark had failed to provide any

evidence that he had been issued a U.S. patent.           Clark does not challenge this

conclusion on appeal, but he argues that the district court should have stayed his

infringement suit while the U.S. Patent and Trademark Office considered his patent

application. Clark is incorrect; he can maintain an action for patent infringement only if

and when he has been issued a patent.          See 35 U.S.C. § 271(a); Amgen, Inc. v.

Genetics Inst., Inc., 98 F.3d 1328, 1332 (Fed. Cir. 1996) (“[O]f course suit can not be

brought for infringement of a patent that has not issued.”). If Clark ultimately succeeds

in his efforts to obtain a patent, he may then be in a position to bring a civil action




2007-1377                                3
regarding acts of alleged infringement occurring after the patent issues, but even then

the activities of the defendants prior to issuance of the patent will not constitute acts of

infringement. Accordingly, there is no basis on which to delay proceedings in this case.

         Clark’s remaining arguments are similarly meritless. Clark does not provide any

legal basis for his allegation that it is improper for Brostron to represent the other

defendants in the pre-trial phase of this case. Additionally, we see no error in the

district court’s treatment of the Board of Education of the City of St. Louis as the proper

name for the entity that manages the St. Louis public schools or in the district court’s

docketing of Clark’s pleadings. As to the latter, if a docketing error did occur, there is no

indication that it affected the outcome of this case or otherwise harmed Clark. We also

see no error in the district court’s handling of communications with Clark, and Clark

does not allege that he was prejudiced by any failure to receive orders from the district

court.

         Finally, Clark argues that the defendants tortiously interfered with his business

relationships and attorney-client relationships. These claims arise under state law. The

district court dismissed Clark’s state-law claims without prejudice under 28 U.S.C.

§ 1367(c), which gives a district court the authority to decline jurisdiction over state-law

claims if it “has dismissed all claims over which it has original jurisdiction.” In this case,

all of the claims arising under federal law have been dismissed, and the district court

lacks original jurisdiction over the claims arising under state law. Because the district

court correctly dismissed Clark’s federal-law claims, we perceive no abuse of discretion

in the district court’s decision to dismiss Clark’s state-law claims without prejudice.

         Accordingly, we affirm the judgment of the district court in all respects.




2007-1377                                   4
                 COSTS

     No costs.




2007-1377        5
