Bondyopadhyay v. United States, No. 19-1831C

CourtCourt of Federal Claims
Writing for the CourtHORN, J.
PartiesPROBIR K. BONDYOPADHYAY, Plaintiff, v. UNITED STATES, Defendant.
Docket NumberNo. 19-1831C
Decision Date23 June 2020

PROBIR K. BONDYOPADHYAY, Plaintiff,
v.
UNITED STATES, Defendant.

No. 19-1831C

United States Court of Federal Claims

June 23, 2020


Pro Se; Patent Infringement; Res Judicata; Fifth Amendment Taking; Fraud; Statute of Limitations.

Probir K. Bondyopadhyay, pro se, Houston, TX.

Joshua I. Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Gary L. Hausken, Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiff's complaint, filed on November 27, 2019, states that "[t]he Plaintiff, a U.S. Citizen is the sole inventor and owner of the live U.S. Patent 6,292,134 entitled Geodesic Sphere Phased Array Antenna System." (capitalization and emphasis in original) (internal references omitted). Attached to plaintiff's complaint is only the first page of the '134 patent, which is dated September 18, 2001. The '134 patent lists plaintiff as the inventor. The abstract of the '134 patent attached to the complaint states:

A geodesic sphere phased array antenna system, capable of scanning the entire omni-directional communication space and comprising substantially equilateral triangular planar subarrays of antenna elements arranged in a geodesic sphere configuration. Icosahedron, one of the five regular solids and truncated icosahedron, one of the fifteen semi-regular solids are the preferred basis of the geodesic sphere phased array construction. The entire communication space is considered as subdivided into a large number of smaller cells and corresponding to each such cellular

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communication space, a contiguous set of the subarrays is energized and electronically phased to scan the cellular space. Another contiguous set of subarrays is energized and electronically phased to scan another cellular space in a similar manner resulting in limited angle scanning requirements which permit the basic antenna elements to be connected in a cluster as a unit building block to which transmit/receive signal distribution and processing means are connected resulting in lower costs in deployment, operation and maintenance.

Below the abstract, the following image is provided:

Image materials not available for display.

The first page of the '134 patent also states that the '134 patent contains "30 Claims, 14 Drawing Sheets." (capitalization and emphasis in original).

Plaintiff's complaint, although at times difficult to follow, seems to allege that the defendant infringed on his ownership of the '134 patent. Plaintiff's complaint states that "[t]he violation of the Constitutional Order has occurred at the Small Business Innovation Research (SBIR) Program of the U.S. Air Force administered by the Air Force Research Laboratory (AFRL) under the central control of the Office of the Secretary of Defense (OSD)." (capitalization and emphasis in original) (internal references omitted). Plaintiff further alleges in his opposition to defendant's motion to dismiss that there have been "two distinctly separate violations: (i) acquisition of Innovation fraud under Title 15 USC section 638(a) and 638 (b). [sic] and (ii) violation of Exclusive Right for Limited Times of an Inventor, Owner, U.S. Citizen, (This Plaintiff)." (capitalization and emphasis in original). With regard to plaintiff's alleged second violation, plaintiff states that the "Exclusive Rights for Limited Times is a U.S. Constitutional Order that can NOT be dismissed by any Article 3 U.S. Courts or Article 1 U.S. Courts, created under Section 8, Clause 9." (capitalization and emphasis in original).

Plaintiff's complaint further states:

The U.S. Air Force has acquired the innovation (that soon became the U.S. Patent), in 1999 in clear violation of Title 15 USC Section 638a and 638b

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to modernize the Air Force Satellite Control Network (AFSCN). The proof, at the origin of this U.S. Air Force effort, is staring at the Honorable Federal Court in Exhibit-3.

(capitalization and emphasis in original). Exhibit 3 of plaintiff's complaint is labeled: "TIME LINE OF DEVELOPMENT WORKS ON THE MODERNIZATION OF AIR FORCE SATTELITE CONTROL NETWORK (AFSCN) BY THE AIR FORCE RESEARCH LABORATORY (AFRL)" (capitalization and emphasis in original), and contains an uncited image depicting the United States Air Force's projected acquisition timeline for the construction of a Full Scale Geodesic Dome Phased Array Antenna, starting in 1999 and completed by 2021.

Plaintiff's multiple filings with the court in the above-captioned case do not specify a particular device of the AFRL which he alleges infringed on the '134 patent. The above-captioned case, Case No. 19-1831C, however, is one of many actions commenced by plaintiff relating to the alleged infringement on the '134 patent, including an administrative claim filed by plaintiff with the Judge Advocate General of the United States Air Force on June 17, 2002, which was denied 44 days later, on July 30, 2002. Between 2003 and 2013, plaintiff filed at least six lawsuits relating to the '134 patent in the United States District Court for the Southern District of Texas against contractors of the AFRL, as well as against the United States.1

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In 2014, plaintiff filed a previous lawsuit against the United States in the United States Court of Federal Claims, which was assigned to Judge Williams. During the course of the proceedings before Judge Williams, she issued three Opinions: a 2015 Opinion granting the United States' partial motion to dismiss, see Bondyopadhyay v. United States, No. 14-147, 2015 WL 1311726 (Fed. Cl. 2015) (Bondyopadhyay I); a Claim Construction Opinion in 2017, see Bondyopadhyay v. United States, 129 Fed. Cl. 793, 807 (Fed. Cl. 2017) (Bondyopadhyay II); and finally, a grant of defendant's motion for summary judgment in 2018, see Bondyopadhyay v. United States, 136 Fed. Cl. 114 (Bondyopadhyay III), aff'd, 748 F. App'x 301 (Fed. Cir. 2018). Also in 2018, Judge Williams' summary judgment decision in favor of defendant in Bondyopadhyay III was affirmed by the United States Court of Appeals for the Federal Circuit. See Bondyopadhyay v. United States, 748 F. App'x 301 (Fed. Cir. 2018) (Bondyopadhyay IV). In Judge Williams' decision granting defendant's partial motion to dismiss in Bondyopadhyay I, Judge Williams determined that some of plaintiff's claims were time-barred, and others "arose after expiration of the patent-in-suit." See Bondyopadhyay I, 2015 WL 1311726, at *1. Judge Williams' decision in Bondyopadhyay I also dismissed plaintiff's "claims for a Fifth Amendment taking, punitive damages, and costs arising out of other litigation." Id. In Judge Williams' Claim Construction Opinion in Bondyopadhyay II, Judge Williams' determined, after a claims construction hearing, that the '134 patent's use of the term "sphere" meant "greater than a hemisphere so as to provide the phased array antenna hemispherical or wider coverage." See Bondyopadhyay II, 129 Fed. Cl. at 807.

In granting summary judgment in favor of the United States in Bondyopadhyay III, Judge Williams found that there was no infringement of the '134 patent by the United States Air Force's device, referred to as the Ball Advanced Technology Demonstration antenna (Ball ATD). See Bondyopadhyay III, 136 Fed. Cl. at 124. Judge Williams described the Ball ATD as follows:

There is only one accused device at issue—the Ball Advanced Technology Demonstration antenna. Since at least 2000, the Air Force Research Laboratory was interested in the feasibility of a large antenna system called the Geodesic Dome Phased Array Antenna. As part of this research, the Air

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Force sponsored a number of small businesses to research and develop technology required for building a full-scale Geodesic Dome Phased Array Antenna. Subsequently, in November 2006, the Air Force awarded a contract to Ball Aerospace & Technologies Corporation to develop a Geodesic Dome Phased Array Antenna advanced technology demonstration. Accordingly, Ball was "to develop, build, and demonstrate the technological maturity, manufacturing readiness, and mission effectiveness of a scalable sector" of a Geodesic Dome Phased Array Antenna. The Ball Advanced Technology Demonstration antenna was the result of this research and development.

The Ball Advanced Technology Demonstration antenna was designed in 2006-07, manufactured in 2007-08, and installed at Schriever Air Force Base in Colorado in 2008-09, for testing and demonstration. The actual demonstration of the Ball Advanced Technology Demonstration antenna took place between February 2009 and May 2009.

The Ball Advanced Technology Demonstration antenna, which stood roughly one to two stories high, was not completely constructed to constitute a full sphere, and was only made up of six flat panels: a single central pentagonal-shaped panel, surrounded by five outer hexagonal-shaped panels. . . .

After the demonstration in 2009, the Ball Advanced Technology Demonstration antenna was disassembled, with one part sent back to Ball Aerospace for further testing, and after 2012, the Air Force Research Laboratory did not engage in any activities to develop, manufacture, or test a Geodesic Dome Phased Array Antenna.

Bondyopadhyay III, 136 Fed. Cl. at 118-20 (internal references omitted). Finding that the Ball ATD did not infringe upon the '134 patent under a literal interpretation, or under the doctrine of equivalents, Judge Williams stated:

In sum, because the Ball Advanced Technology Demonstration antenna was incapable of providing hemispheric or greater coverage, it did not literally infringe the '134 patent. Under either test for infringement under the doctrine of equivalents, the accused device cannot be found as infringing. Accordingly, Defendant's motion for summary judgment is GRANTED, and Plaintiff's 'Motion of the Infringement Phase' is DENIED.

Id. at 124 (capitalization and emphasis in original)...

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