Case Information
*1 ct-EM s OFFICE U.S. DIST. COUU AT ROANOKE, VA FILED JL8 1 û 2216 IN THE UNITED STATES DISTRICT COURT JULIA . , ERK BY', FO R TH E W E STER N D ISTR ICT O F VIR G INIA R O A NO K E D IV ISIO N
A N TH O NY AN TH A SM ITH , CA SE NO . 7:14CV 00285
Plaintiff,
M EM O M N DU M O PINIO N By: G len E . Conrad CHARLES A M CCLURE, ESQ.,
Chief U nited States D istrict Judge D efendant.
Anthony Antha Smith, a Kentucky inmate proceeding pro K , filed a pleading that he styles as a ûICIVIL COM PLAINT FOR PATENT W FRINGEM ENT.'' (Compl. 1.) Smith also moves to proceed in forma pauperis. Upon review of the record, the court grants plaintiff iq forma pauperis status, pursuant to 28 U.S.C.j 1915(b), but finds that the action must be sllm marily dismissed.
Sm ith sues a now-deceased attorney, Charles A. M ccltlre, of Lexington, Virginia, who represented Sm ith in obtaining a 1999 patent for a device Sm ith invented, the Ctportable Liquid Sanitation Cart-'' (Compl. 2.) Smith alleges that he employed M cclure in 1995 to assist him in patenting Smith's invention, also known as a ttllospital Liquid Sanitation Cart.'' (Compl. 2.) Som etime after obtaining Patent N o. 5918323 for the device, Smith tûsuffered a stroke and remained tmable to commtmicate with others for a considerable period of time.'' (1d.) Smith believes that while he was so incapacitated, M cclure began offering the sanitation cart device as his own on his business website, Patentstorm, thus allegedly infringing on Sm ith's rights tmder the patent. Smith asserts that M cclure wrongfully denied him a1l protks obtained through listing the cart on the website and seeks compensatory dnmages and an injtmction against M ccltlre to prevent him from blocking Smith's exercise of his rights.
Sm ith filed these snm e claim s against M ccltlre in 2008. Sm ith v. M ccltlre, Case N o. 7:08CV00414 (W .D. Va. 2008). The court summarily dismissed the action under 28 U.S.C. j 1915(e)(2)(B) for failure to state a claim. Section 1915 imposes a mandatory duty on the court Evto screen initial filings (submitted in fonna pauperisl to determine whether they fall within any of the causes for dismissal set forth in j 1915(e)(2)(B)'' and to liûapply common sense, reject the fantastic, and rebut alleged matters with judicially noticeable facts.''' 1d., Slip Op. 3 (nuotina Nasim v. w arden. M aryland House of Corr., 64 F.3d 951, 954 (4th Cir. 1995:.
In Case N o. 7:08CV 00414, the court fotmd that Sm ith had not presented facts stating any claim that M ccltlre had infringed on Smith's patent by offering his invention for sale on the Patentstorm website. The cotlrt took judicial notice that the website Smith referenced merely provided the general public with an opportunity to search and obtain free copies of patents for all patented inventions from 1976 to the present; that the website itself expressly inform ed patrons that it did not offer for sale any of the patented goods m entioned on the site; and that M ccltlre was listed on the website as Sm ith's patent attom ey, not as an owner of the w ebsite. On these facts, the court found that Sm ith had not stated any claim against M cclm e for patent infringement under 35 U.S.C. j 271(a) and dismissed the action under j 1915(e)(2)(B).
Smith's current claim of patent infringem ent must also be sum marily dism issed under j 1915(e)(2)(B). For the reasons stated in Case No. 7:08CV00414, Smith has not presented any actionable claim against anyone based on the Patentstorm 's listing of his patent in the past. W hen the court attempted to visit the Patentstorm website in June 2014, the display consisted of a message that Patentstorm is no longer in operation. Sm ith him self states that M cclm e died in 2010. Thus, Smith's claims for injunctive relief to prevent futlzre listing of his invention on the w ebsite or future m isuse of the patent in any w ay by M ccltlre m ust be dism issed ms m oot.
2 *3 For the reasons stated, the court dism isses Sm ith's com plaint, plzrsuant to j 1915(e)(2)(B), for failure to state a claim . The Clerk is directed to send copies of this m emorandum opinion and accompanying Order to plaintiff.
ENTER : This j day of June, 2014. N
Chief United States District Judge