779 F.2d 522 (9th Cir. 1985), 85-1578, Chamberlin v. Isen

Docket Nº85-1578.
Citation779 F.2d 522
Party Name228 U.S.P.Q. 369 Raymond A. CHAMBERLIN, Plaintiff-Appellant, v. Forester W. ISEN, et al., Defendants-Appellees.
Case DateDecember 26, 1985
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 522

779 F.2d 522 (9th Cir. 1985)

228 U.S.P.Q. 369

Raymond A. CHAMBERLIN, Plaintiff-Appellant,

v.

Forester W. ISEN, et al., Defendants-Appellees.

No. 85-1578.

United States Court of Appeals, Ninth Circuit

December 26, 1985

Argued and Submitted Oct. 11, 1985.

Raymond A. Chamberlin, Palo Alto, Cal., pro se.

Larry L. Gallagher, Sp. Asst. U.S. Atty., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SKOPIL, PREGERSON and WIGGINS, Circuit Judges.

SKOPIL, Circuit Judge:

Raymond A. Chamberlin appeals from a decision dismissing his action filed under

Page 523

the Federal Tort Claims Act for lack of subject matter jurisdiction. We must decide whether the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2680(a) (1982), shields Patent and Trademark Office ("PTO") employees from tort liability, based on a patent examiner's conduct in rejecting a patent application. We affirm the district court's dismissal of the case for lack of subject matter jurisdiction.

FACTS AND PROCEEDINGS BELOW

Raymond Chamberlin applied for a patent on an "Annotated Multi-Alarm Appointment Scheduler." After initial rejection by a patent examiner, Chamberlin's application was transferred to examiner Forester Isen. Isen found Chamberlin's answer to the first examiner's objections to the application non-responsive. After a proper response, Isen issued a final rejection of the application based on its vagueness and indefiniteness under 35 U.S.C. Sec. 112 (second paragraph) (1982). After Isen's final rejection, Chamberlin attempted to amend the application numerous times. Isen did not enter any of Chamberlin's proposed amendments, finding that they did not place the application in better form for appeal.

Chamberlin contends the application was rejected because of Isen's "idiosyncratic" notion of the proper phrasing of a patent application. Chamberlin also claimed that Isen acted improperly in refusing to enter the proposed amendments. Chamberlin twice petitioned to replace Isen as his examiner. These requests were denied. When Chamberlin's time for a proper response or appeal expired, the PTO deemed Chamberlin's application abandoned.

Chamberlin then filed an administrative tort claim. It was denied. Chamberlin filed this action based on Isen's alleged tortious behavior in rejecting his patent application. Without hearing argument the district court dismissed the action for lack of subject matter jurisdiction, holding that Isen's conduct in examining Chamberlin's application fell within the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a) (1982). 1

STANDARD OF REVIEW

This court reviews de novo a district court's determination that it lacks subject matter jurisdiction under the discretionary function exception. See Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985); Nevin v. United States, 696 F.2d 1229, 1231 (9th Cir.1983).

DISCUSSION

28 U.S.C. Sec. 2680(a) (1982) excepts from the FTCA's coverage:

Any claim ... based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not...

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30 practice notes
  • Changes to Representation of Others Before The United States Patent and Trademark Office
    • United States
    • Federal Register April 03, 2013
    • April 3, 2013
    ...quasi-judicial functions, is apparent from the nature of the examinations and decision he is required to make.''); Chamberlin v. Isen, 779 F.2d 522, 524 (9th Cir. 1985) (``It has long been recognized that PTO employees perform a `quasi-judicial' function in examining patent applications.'')......
  • 817 F.2d 560 (9th Cir. 1987), 86-5578, Baker v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 18, 1987
    ...court's determination that it lacks subject matter jurisdiction under the discretionary function exception is de novo. Chamberlin v. Isen, 779 F.2d 522, 523 (9th III. DISCUSSION The United States can be sued only to the extent that it has waived its sovereign immunity. United States v. Orle......
  • 943 F.2d 1107 (9th Cir. 1991), 90-35423, Richardson v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • August 30, 1991
    ...matter jurisdiction over tort actions based on federal defendants' performance of discretionary functions"); Chamberlin v. Isen, 779 F.2d 522, 526 (9th Cir.1985) (affirming district court's dismissal for lack of subject jurisdiction because the discretionary function applied); Cisco v.......
  • 642 F.Supp. 297 (N.D.Cal. 1986), C-85-7461, Liu v. Republic of China
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • August 11, 1986
    ...judicial review would encroach upon this type of balancing done by an agency, then the exception would apply." Chamberlin v. Isen, 779 F.2d 522, 523 (9th Cir.1985) (quoting Begay v. United States, 768 F.2d 1059, 1064 (9th The alleged conduct involved here is the intentional killing of ......
  • Request a trial to view additional results
28 cases
  • 817 F.2d 560 (9th Cir. 1987), 86-5578, Baker v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 18, 1987
    ...court's determination that it lacks subject matter jurisdiction under the discretionary function exception is de novo. Chamberlin v. Isen, 779 F.2d 522, 523 (9th III. DISCUSSION The United States can be sued only to the extent that it has waived its sovereign immunity. United States v. Orle......
  • 943 F.2d 1107 (9th Cir. 1991), 90-35423, Richardson v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • August 30, 1991
    ...matter jurisdiction over tort actions based on federal defendants' performance of discretionary functions"); Chamberlin v. Isen, 779 F.2d 522, 526 (9th Cir.1985) (affirming district court's dismissal for lack of subject jurisdiction because the discretionary function applied); Cisco v.......
  • 642 F.Supp. 297 (N.D.Cal. 1986), C-85-7461, Liu v. Republic of China
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • August 11, 1986
    ...judicial review would encroach upon this type of balancing done by an agency, then the exception would apply." Chamberlin v. Isen, 779 F.2d 522, 523 (9th Cir.1985) (quoting Begay v. United States, 768 F.2d 1059, 1064 (9th The alleged conduct involved here is the intentional killing of ......
  • 670 F.Supp. 1498 (D.Or. 1987), Civ. 80-699, Olympia Sauna Compania Naviera, S.A. v. United States
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • April 14, 1987
    ...Varig, 467 U.S. at 813, 104 S.Ct. at 2764. See also Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986); Chamberlin v. Isen, 779 F.2d 522, 524 (9th Cir.1985). The Varig court reaffirmed the Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953) holding t......
  • Request a trial to view additional results
2 provisions
  • Changes to Representation of Others Before The United States Patent and Trademark Office
    • United States
    • Federal Register April 03, 2013
    • April 3, 2013
    ...quasi-judicial functions, is apparent from the nature of the examinations and decision he is required to make.''); Chamberlin v. Isen, 779 F.2d 522, 524 (9th Cir. 1985) (``It has long been recognized that PTO employees perform a `quasi-judicial' function in examining patent applications.'')......
  • Changes to Representation of Others Before the United States Patent and Trademark Office
    • United States
    • Federal Register October 18, 2012
    • October 18, 2012
    ...quasi- judicial functions, is apparent from the nature of the examinations and decision he is required to make.''); Chamberlin v. Isen, 779 F.2d 522, 524 (9th Cir. 1985) (``It has long been recognized that PTO employees perform a `quasi-judicial' function in examining patent applications.''......