Perry v. United States
20-2084
| Fed. Cir. | Jul 13, 2021Background
- Perry filed suit in the Court of Federal Claims challenging USPTO handling of three patent applications (examination rejections, publication, and alleged abandonment), seeking patent grants, money, and mandamus.
- He alleged constitutional violations (due process, takings), bad faith, APA and regulatory violations, and that USPTO improperly required and retained fees.
- The Court of Federal Claims parsed the complaint into contract, takings (Tucker Act), and illegal-exaction theories (money-mandating), and also identified FTCA, APA, declaratory/mandamus, tort, and criminal claims.
- The trial court dismissed many claims for lack of jurisdiction (e.g., APA, FTCA, torts, mandamus, non-infringement patent issues) and dismissed the contract/takings/exaction theories for lack of jurisdiction or for failure to state a claim.
- The court also dismissed as frivolous Perry’s hacking/email allegations.
- Perry appealed; the Federal Circuit affirmed the Court of Federal Claims’ dismissals in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contract (submission of patent application = contract) | Perry contends USPTO terms/online submission created a binding contract entitling relief | Govt/trial court: no facts show mutual intent, offer/acceptance, or official authority to bind U.S.; at best an implied-in-law obligation (outside CFC jurisdiction) | Affirmed: no express or implied-in-fact contract pleaded; implied-in-law contract not within CFC jurisdiction; 12(b)(6) failure too |
| Takings (publication/denial of patents) | Perry says USPTO’s publication/denial took property without just compensation | Govt/trial court: Perry did not identify a cognizable property interest and did not concede validity of the government action (required in takings claims) | Affirmed: jurisdiction lacking and failure to plead recognized property interest or governmental taking |
| Illegal exaction (fees) | Perry asserts USPTO acted in bad faith and improperly exacted fees and must return them | Govt/trial court: Perry made only conclusory assertions without factual detail showing funds were improperly assessed or retained | Affirmed: complaint insufficient to establish illegal-exaction jurisdiction or state a claim |
| Non-takings claims (APA, FTCA, torts, criminal, patent-examination decisions) | Perry sought APA relief, FTCA damages, injunctive/declaratory relief, and alleged tort/criminal misconduct by USPTO | Govt/trial court: CFC lacks jurisdiction over APA, mandamus, injunctive/declaratory relief here; tort and criminal claims are outside CFC jurisdiction; patent-examination (non-infringement) claims are not within CFC’s patent-infringement jurisdiction | Affirmed: CFC correctly dismissed for lack of jurisdiction |
| Frivolous allegations (email hacking, judge bias, omitted inventive features) | Perry alleges USPTO hacked his email and other misconduct without evidentiary support | Govt/trial court: allegations are implausible and unsupported; dismissal as frivolous appropriate | Affirmed: no abuse of discretion in dismissing frivolous claims |
Key Cases Cited
- Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206 (Fed. Cir. 2005) (takings requires valid property interest and compensable governmental action)
- Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993) (plaintiff must concede validity of government action when pleading a takings claim)
- Aerolineas Argentinas v. United States, 77 F.3d 1564 (Fed. Cir. 1996) (definition and requirements for illegal-exaction claims)
- Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967) (classic articulation of illegal-exaction doctrine)
- City of Cincinnati v. United States, 153 F.3d 1375 (Fed. Cir. 1998) (distinguishes implied-in-fact contracts from implied-in-law obligations)
- Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305 (Fed. Cir. 2011) (implied-in-law contracts arise to prevent injustice and lie outside CFC jurisdiction)
- Keene Corp. v. United States, 508 U.S. 200 (1993) (CFC lacks jurisdiction over tort-like bad-faith claims)
- Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) (CFC lacks APA jurisdiction)
- Denton v. Hernandez, 504 U.S. 25 (1992) (courts may dismiss frivolous claims at their discretion)