     3Jn tbr Wnitrb ~tatrs QCourt of jfrbrral QCiaims
                                No. 13-307C
                            (Filed: May 8, 2019)

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

LARRY GOLDEN,                                          Takings; taking of intangible
                                                       patented subject matter; 28
                     Plaintiff,                        u.s.c. § 1491 (2012); 28
                                                       U.S.C § 1498(a) (2012);
V.                                                     subject matter jurisdiction

THE UNITED STATES,

                     Defendant.

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

                       ORDER GRANTING
                 DEFENDANT'S MOTION TO DISMISS

BRUGGINK, Judge.

        Pending before the court is defendant's March 18, 2019 motion to
dismiss plaintiffs takings claims under Rules 12(b)(l) and 12(b)(6) of the
Rules of the United States Court of Federal Claims. Defendant argues that
plaintiffs purported takings claims are, in substance, patent infringement
claims, which cannot be brought under the Tucker Act, 28 U.S.C. § 1491
(2012), but must instead be brought under the court's separate patent
jurisdiction, 28 U.S.C. § 1498(a) (2012). (Plaintiff already has pending
claims under§ 1498(a).) Defendant also argues that, in any event, plaintiffs
allegations fail to state a viable takings claim. The motion is fully briefed.
Oral argument is deemed unnecessary. We grant defendant's motion to
dismiss all of plaintiffs takings claims. In many respects they fail to state a
claim on which relief can be granted, but more importantly, we do not have
jurisdiction over them under the Tucker Act.

        The final amended complaint includes two general counts, a takings
claim and a patent infringement claim, followed by a battery of particular
takings and patent infringement allegations. Count I alleges that the United
States has taken "Intangible Patented Subject Matter of U.S. Patents,"
stating:
               87. [T]he United States has "taken" and continues to
       "take" the Plaintiffs personal property for the benefit of the
       public without paying just compensation for the "takings" ...
           [T]he Government has taken the private and personal
       Property subject matter as outlined in the Plaintiffs U.S. Patent
       No. [lists patent numbers] specifications and patent claims that
       are significantly the same or equivalent to the claimed
       inventions of the Plaintiff; the Government was given notice,
       made aware of, and told or signaled that the private and
       personal property subject matter as outlined in the Plaintiffs
       patent(s) specifications and patent claims that was taken by the
       Government are significantly the same or equivalent to the
       claimed inventions of the Plaintiff . . . resulting in the
       Government's manufacture and development of products,
       devices, methods, and systems that are significantly the same
       or equivalent to the claimed inventions of the Plaintiff ... by
       virtue of the access, disclosure, manufacture, development or
       use, by or for the Government and its third party awardees, has
       destroyed the Patent Owner's competitive edge . . . the
       character of the Government's action was triggered when the
       "Takings" caused a permanent physical invasion of the
       Plaintiffs property and eliminated all economically beneficial
       uses of such property; without authorization and consent from
       the Patent Owner and without just compensation to the
       Plaintiff.

               88. As a result of contracts, agreements, publications,
       solicitations, awards, announcements, and grants, the United
       States actions and conduct and the actions and conduct of its
       agents, including at least the following agencies: [lists
       agencies], has used for the benefit of the public, authorized the
       use for the benefit of the public, shared intangible subject
       matter, without license or legal right, or authorization and
       consent from the Plaintiff, Plaintiffs personal property subject
       matter as described in and covered by the Plaintiffs [lists
       patent numbers] patents.

Final Comp!. "il"il 87-88. 1

1 Plaintiff follows Count I with discreet takings claims that m1m1c the
language used Count I. Final Comp!. "il"il 93-95, 98-100, 103-05, 108-10, 113-
                                       2
       The government contends that the "taking" plaintiff complains of
consists of alleged patent infringement by or for the United States. The rights
at issue are the subject matter of plaintiffs patents. 28 U.S.C. § 1498(a)
provides a cause of action when a patented invention "is used or
manufactured by or for the United States without license .... " The language
plaintiff uses to describe the taking matches the language in § 1498(a):
plaintiff pleads "manufacture ... by or for the Government" and "use ... by
or for the Government." Final Comp!. ,i 87. Plaintiffs use of the terms
manufacture, use, and develop mirror his patent infringement claims.
Defendant argues that plaintiff cannot create jurisdiction under the Tucker
Act by labelling what are in substance infringement claims as a taking.

        Plaintiff submitted, by leave of court, an approximately 60-page
response. Mr. Golden argues "[w]henever the Government use[s] with the
public or contracts with other third party contractors for the development of
Plaintiffs Intellectual Property Subject Matter . . . without just
compensation, the Government has taken the Plaintiffs property .... " Pl.'s
Resp. 53. He states that patent infringement is not a prerequisite to bringing
a takings claim under the Fifth Amendment. Mr. Golden spends the bulk of
his response alleging implied-in-fact contracts with various agencies. After
our review of his response and exhibits, we understand Mr. Golden to argue
that his takings claims are not concerned with patent infringement but with
other actions such as alleged breaches of implied-in-fact contracts.

       We conclude that plaintiffs "takings" claims seek compensation for
patent infringement that cannot be pursued under the Tucker Act. This court
has jurisdiction under the Tucker Act to adjudicate claims alleging violation
of the Fifth Amendment Takings Clause. See Jan's Helicopter Serv., Inc. v.
F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008). The Supreme Court first held
in Schillinger v. United States, 155 U.S. 163, 168-69 (1894), however, that
the Tucker Act does not confer jurisdiction over a claim that the United States
used a patented invention without authorization, even if pied as a Fifth
Amendment takings claim. Following Schillinger, Congress waived the

15,   118-20, 123-25,   128-30,   133-35,   138-40,   143-45,   148-50,   153-55,   158-
60,   168-70, 173-75,   181-83,   186-88,   191-93,   196-98,   201-03,   206-08,   211-
13,   216-18, 221-23,   227-29,   232-34,   237-39,   242-44,   247-49,   252-54,   257-
59,   262-64, 267-69,   272-74,   277-79,   282-84,   287-89,   292-94,   297-99,   302-
04,   307-09, 312-14,   317-19,   322-24,   327-29,   332-34,   337-39,   342-44,   347-
49,   352-54, 357-59,   362-64,   367-69,   372-74,   377-79,   382-84,   387-89,   392-
94,   397-99, 402-04.
                                            3
government's sovereign immunity regarding certain patent infringement
claims by enacting a new statute, the predecessor to 28 U.S.C. § 1498. Patent
infringement claims against the United States have since been brought
exclusively as claims under § 1498(a). The Federal Circuit and this court
have confirmed that a Fifth Amendment claim under the Tucker Act is not
an alternative to suing for patent infringement under the now-existing §
1498(a). Christy, Inc. v. United States, 141 Fed. Cl. 641, 659-60 (2019);
Keehn v. United States, 110 Fed. Cl. 306, 335 (2013); Demodulation v.
United States, 103 Fed. Cl. 794, 810-11 (2012); Lamson v. United States, 101
Fed. Cl. 280, 284-85 (2011); see also Zoltekv. United States, 442 F.3d 1345,
1350-53 (Fed. Cir. 2006), vacated on other grounds, 672 F.3d 1309, 1326
(Fed. Cir. 2012) (en bane).

        Plaintiffs takings claims are only concerned with the subject matter
of his patents. Each takings claim is paired with a patent infringement claim
relating to the same patents and government action. E.g., Final Comp!. ,r,r 93-
97 (both takings and infringement claims relate to the "LG Electronics GS
Smartphone"). The final complaint offers only headings to distinguish
between the types of claims. Mr. Golden properly sought relief for patent
infringement under § 1498(a). Most of those claims have been dismissed.
Simply labeling the same government action a "taking" rather than patent
infringement does not transform the claim into one justiciable under the
Tucker Act as a violation of the Takings Clause of the Fifth Amendment. We
thus dismiss plaintiffs purported takings claims for lack of subject matter
jurisdiction.

        Defendant also argues that plaintiff fails to state a claim upon which
relief can be granted. We agree. This problem arises by virtue of the fact that
plaintiffs allegations are internally inconsistent and vague. Plaintiff cannot
state a claim for a "taking" by alleging that the government used information
disclosed, but not claimed by, plaintiffs patents. Johnson & Johnston
Assocs. v. R.E. Serv. Co., 285 F.3d 1046, 1054 (Fed. Cir. 2012). Similarly,
plaintiff cannot state a claim for a "taking" by alleging that the government
disclosed information that plaintiff himself had necessarily disclosed through
patent prosecution. See Festa Corp. v. Shoketsu Kogyo Kabushiki Co., 535
U.S. 722, 731 (2002). Plaintiff also references unlawful or unauthorized
actions by the government throughout the complaint. E.g., Final Comp!. ,r,r
134, 144, 154 ("interagency exchange of unauthorized information ... shared
intangible subject matter without a license or legal right"). A hallmark of a
Fifth Amendment takings claim is a litigant's concession that the
government's behavior is lawful; thus, plaintiff cannot state a "takings" claim
to the extent he alleges the government's action was unlawful. See Crocker
                                       4
v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997). Taken together,
plaintiffs claims lack elements necessary to state a taking and must be
dismissed for failing to state a claim on which relief can be granted.

        Finally, plaintiff spends many pages in his response discussing breach
of implied-in-fact contracts and tying breach of those contracts to his takings
claims, but none of this material is present in plaintiffs five amended
complaints. Rule 15(a)(2) requires plaintiff to seek the opposing party's
consent or the court's leave to amend the complaint. The court will freely
grant leave to amend "when justice so requires." Id. Plaintiff has not moved
to amend the final complaint. In the past, the court has freely allowed plaintiff
to amend the complaint, but we also communicated to plaintiff that the fifth
amended complaint must be the final, comprehensive statement of his
allegations against the United States. May 25, 2017 Order, ECF No. I 16
("[T]he court has determined that Plaintiff may amend his complaint and
claim chart one final time, prior to the court's ruling on jurisdiction....
Plaintiff will file a Fifth and Final Amended Complaint, wherein Plaintiff
will allege all claims asserted against the government.") To the extent that
any aspect of plaintiffs response to the motion to dismiss could be construed
as a motion to amend, that motion is denied. The court will not consider any
of these new allegations in relation to the motion to dismiss or moving
forward with this matter.

       The court therefore grants defendant's motion to dismiss plaintiffs
takings claims. The only claims remaining in this case are eleven claims of
patent infringement relating to three patents that survived the government's
motion to dismiss certain patent infringement claims; those claims are poised
for claim construction. The parties are directed to file a status report
proposing a schedule for next steps in this matter on or before May 31, 2019.




                                            Senior Judge




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