Probir Kumar Bondyopadhyay v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PROBIR KUMAR BONDYOPADHYAY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2091
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01831-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: March 11, 2021
______________________
PROBIR K UMAR BONDYOPADHYAY, Houston, TX, pro se.
JOSHUA M ILLER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
SCOTT D AVID B OLDEN , JEFFREY B. C LARK , G ARY LEE
H AUSKEN .
______________________
Case: 20-2091 Document: 43 Page: 1 Filed: 03/11/2021

-- 1 of 9 --

BONDYOPADHYAY v. US 2
Before PROST, Chief Judge, LOURIE and REYNA, Circuit
Judges.
PER C URIAM.
Dr. Probir Kumar Bondyopadhyay appeals from a de-
cision of the United States Court of Federal Claims (the
“Claims Court”) dismissing his complaint against the
United States. He alleged a “violation” of U.S. Patent
6,292,134 (the “’134 patent”), a patent infringement-based
taking by the government, and fraud. See Bondyopadhyay
v. United States, 149 Fed. Cl. 176, 179–83 (2020) (“Deci-
sion”). Because the court correctly concluded that the
claims were barred by res judicata or for lack of jurisdic-
tion, we affirm.
BACKGROUND
Dr. Bondyopadhyay filed a complaint in the Claims
Court on November 27, 2019, alleging that the United
States “violat[ed] [his] Exclusive Right for Limited Times,”
the ’134 patent. Decision at 179. The ’134 patent relates
to a “geodesic sphere phased array antenna system” for
“multi-satellite tracking and communications.” ’134 pa-
tent, Abstract, col. 3 ll. 3–6. Dr. Bondyopadhyay accused
the government of a “violation of Exclusive Right for
Limited Times of an Inventor, Owner, U.S. Citizen [which
is] a U.S. Constitutional Order that can NOT be dismissed
by any Article 3 U.S. Courts or Article 1 U.S. Courts, cre-
ated under Section 8, Clause 9.” Decision at 179 (emphasis
in original). Dr. Bondyopadhyay stated that the govern-
ment “has taken the livelihood of this Independent Inventor
for a prolonged period of eleven years and 23 days and con-
tinues to remain indifferent towards this Constitutional
Order for a long time.” Id. at 182 (emphasis in original).
Dr. Bondyopadhyay further argued that the government
committed “acquisition of Innovation fraud under Title 15
USC section 638(a) and 638(b)” and “honors [a] false inven-
tor.” Id. at 179, 182–83 (original formatting omitted). In
the complaint, Dr. Bondyopadhyay did not expressly focus
Case: 20-2091 Document: 43 Page: 2 Filed: 03/11/2021

-- 2 of 9 --

BONDYOPADHYAY v. US 3
on a specific device as infringing the ’134 patent claims. Id.
at 187. He instead referred to government technology that,
in 2014, he accused of infringing the ’134 patent. Id.
This is the second time that Dr. Bondyopadhyay has
appealed to this court regarding the ’134 patent. See Bon-
dyopadhyay v. United States, 748 Fed. App’x 301 (Fed. Cir.
2018) (“Bondyopadhyay I Appeal”), aff’g Bondyopadhyay v.
United States, 136 Fed. Cl. 114 (2018) (“Bondyopadhyay
I”). On February 23, 2014, Dr. Bondyopadhyay filed a com-
plaint in the Claims Court accusing the United States Air
Force of infringing the ’134 patent by “using and manufac-
turing a portion of a phased antenna array system.” Bon-
dyopadhyay I at 116. The accused device at issue in that
case was “the Ball Advanced Technology Demonstration
antenna.” Id. at 118–19.1 On March 20, 2015, the court
granted the government’s partial motion to dismiss his
claims for pre-January 11, 2008 damages as time barred by
the six-year statute of limitations set forth in 28 U.S.C.
§ 2501 and any claims that arose after the ’134 patent ex-
pired on September 18, 2009. See Bondyopadhyay v.
United States, No. 14-147C, 2015 WL 1311726, at *7 (Fed.
Cl. Mar. 20, 2015). The court also dismissed Dr. Bondyo-
padhyay’s Fifth Amendment takings claim. See id. at *6.
After the claim construction phase, the Claims Court
granted the government’s August 23, 2017 motion for sum-
mary judgment. See Bondyopadhyay I at 120–21, 124. The
court found that the accused device did not infringe the
’134 patent literally or under the doctrine of equivalents.
See id. On appeal, this court determined that the Claims
Court “correctly granted summary judgment of
1 We previously discussed the ’134 patent and the
technology at issue in the Bondyopadhyay I Appeal opin-
ion. See id. at 302–05.
Case: 20-2091 Document: 43 Page: 3 Filed: 03/11/2021

-- 3 of 9 --

BONDYOPADHYAY v. US 4
noninfringement in favor of the government.” Bondyo-
padhyay I Appeal at 308.
In the present case, the Claims Court interpreted
Dr. Bondyopadhyay’s complaint as setting forth three
claims: (1) infringement of the ’134 patent, (2) a patent in-
fringement-based Fifth Amendment taking, and (3) fraud-
ulent or false conduct. See Decision at 179. Regarding the
infringement claim, the court determined that Dr. Bondy-
opadhyay already litigated that issue to a final judgment
in the Bondyopadhyay I case, so his infringement claims
were barred by the doctrine of res judicata. See id. at 190.
The court found that Dr. Bondyopadhyay did “not refute
[the government’s] statements in its motion to dismiss . . .
that ‘[t]he device made pursuant to this Acquisition Time-
line is the Ball Advanced Technology Demonstration an-
tenna,’ or that ‘the exhibits appended to
[Dr. Bondyopadhyay’s] complaint and in Bondyopadhyay I
make clear that [Dr. Bondyopadhyay] accuses the exact
same device of infringing the exact same patent.’” Id. at
189–90 (emphasis in original).
Next, for the same reasons discussed in the Bondyo-
padhyay I opinion, the Claims Court determined that it
lacked subject matter jurisdiction to hear Dr. Bondyopadh-
yay’s patent infringement-based Fifth Amendment takings
claim. See id. at 191 (“[T]o the extent plaintiff alleges a
taking claim based on the alleged infringement of the ’134
patent, this court lacks jurisdiction to hear such a claim as
a Fifth Amendment taking claim.”). Furthermore, the
court determined that Dr. Bondyopadhyay’s fraud allega-
tions were tort claims which are expressly excluded from
its jurisdiction by the Tucker Act. See id. at 192; 28 U.S.C.
§ 1491(a). The court thus determined that it lacked subject
matter jurisdiction to adjudicate those fraud-based claims.
See Decision at 192 (“[P]laintiff’s allegations of fraudulent
or false conduct on the part of the defendant . . . must be
dismissed for lack of jurisdiction in this court.”).
Case: 20-2091 Document: 43 Page: 4 Filed: 03/11/2021

-- 4 of 9 --

BONDYOPADHYAY v. US 5
The Claims Court additionally considered whether
Dr. Bondyopadhyay’s claims were barred by the applicable
statute of limitations. See id. at 192–94. As set forth in 28
U.S.C. § 2501, the statute of limitations for every claim of
which the court has jurisdiction is six years after such
claim first accrues. The court determined that, even if the
statute of limitations could be tolled by 28 U.S.C. § 286 for
an additional 44 days, “under any plausible formulation of
the claims in [Bondyopadhyay’s] complaint, the current
case, which was filed on November 27, 2019, was not filed
within the applicable statute of limitations pursuant to 28
U.S.C. § 2501 and 35 U.S.C. § 286.” Id. at 194. The court
thus dismissed Dr. Bondyopadhyay’s complaint, stating
that he “did not offer any evidence or argument as to why
[his] current case for patent infringement against the
United States is not materially identical to the patent in-
fringement claims at issue in [his] previous case in this
court, or why his current case is within the applicable stat-
ute of limitations.” Id.
Dr. Bondyopadhyay timely appealed. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3).2
D ISCUSSION
We review dismissals by the Claims Court for res judi-
cata or for lack of jurisdiction de novo. Frazer v. United
States, 288 F.3d 1347, 1351 (Fed. Cir. 2002). A plaintiff
“bears the burden” of demonstrating jurisdiction. Thomson
v. Gaskill, 315 U.S. 442, 446 (1942). Although pro se plain-
tiffs are entitled to a liberal construction of their complaint,
2 Dr. Bondyopadhyay’s opening brief references Bon-
dyopadhyay v. Sec’y of Defense, No. 4:13-cv-01914 (S.D.
Tex.). See, e.g., Appellant’s Br. 2–4, 6, 11, 14–16. To the
extent Dr. Bondyopadhyay challenges that district court’s
findings in this appeal, we lack jurisdiction over any such
challenges.
Case: 20-2091 Document: 43 Page: 5 Filed: 03/11/2021

-- 5 of 9 --

BONDYOPADHYAY v. US 6
see Haines v. Kerner, 404 U.S. 519, 520–21 (1972), the leni-
ency afforded pro se litigants with respect to mere formali-
ties does not relieve them of jurisdictional requirements,
Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380
(Fed. Cir. 1987).
Beginning with the patent infringement claims,
Dr. Bondyopadhyay argues that the doctrine of res judicata
does not apply. See Appellant’s Br. 15. He states that the
Claims Court “failed to correctly apply” 28 U.S.C.
§ 1498(a). Id. at 7. Dr. Bondyopadhyay asserts that the
court misunderstood that the issue is unauthorized use of
the ’134 patent for 12 years and 229 days—distinguishing
between the idea of an alleged use of the ’134 patent by the
government versus a need to identify an accused device
that falls within the scope of any of the ’134 patent claims.
See Appellant’s Reply Br. 10. Dr. Bondyopadhyay claims
that a July 30, 2002 letter from the Air Force Legal Ser-
vices Agency is proof of patent infringement by admission.
See Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-147C).
Dr. Bondyopadhyay characterizes the letter as admitting
to infringement of the ’134 patent by the government’s “ex-
perimental use.” Appellant’s Reply Br. 2, 8, 12.
The government responds that Dr. Bondyopadhyay al-
ready brought identical infringement claims against the
same party and litigated those claims to a final judgment,
so the doctrine of res judicata resolves this issue. See Ap-
pellee’s Br. 8, 11–12. The government asserts that
Dr. Bondyopadhyay’s argument that the antenna system
could not be fully built during the life of the ’134 patent is
a new argument and, regardless, one that supports the
Claims Court’s dismissal of his infringement claims. See
id. at 9.
Under the doctrine of res judicata, a final judgment on
the merits precludes the same parties from relitigating
claims that were raised or could have been raised before.
See Faust v. U.S., 101 F.3d 675, 677 (Fed. Cir. 1996).
Case: 20-2091 Document: 43 Page: 6 Filed: 03/11/2021

-- 6 of 9 --

BONDYOPADHYAY v. US 7
“Claim preclusion requires (1) an identity of parties or their
privies, (2) a final judgment on the merits of the first suit,
and (3) the later claim to be based on the same set of trans-
actional facts as the first claim such that the later claim
should have been litigated in the prior case.” Bowers Inv.
Co. v. United States, 695 F.3d 1380, 1384, (Fed. Cir. 2012)
(citing Ammex, Inc. v. United States, 334 F.3d 1052, 1055
(Fed. Cir. 2003)).
The Claims Court correctly determined that Dr. Bon-
dyopadhyay’s claims accusing the United States of infring-
ing the ’134 patent were barred by the doctrine of res
judicata. In Bondyopadhyay I, Dr. Bondyopadhyay ac-
cused the government of infringing the ’134 patent through
development of the Ball Advanced Technology Demonstra-
tion antenna. See Bondyopadhyay I at 116. As discussed
supra, the court found that the government’s antenna did
not infringe the ’134 patent literally or under the doctrine
of equivalents and granted the government’s motion for
summary judgment. See id. at 124. We affirmed. See Bon-
dyopadhyay I Appeal at 308. Regarding the patent in-
fringement claims, there was thus a final judgment on the
merits. Dr. Bondyopadhyay again here seeks under 28
U.S.C. § 1498 to assert the same ’134 patent against the
same party. But regardless how Dr. Bondyopadhyay char-
acterizes his claims, as unauthorized use of the patent or
depriving him of a constitutional right to make a living, his
claims boil down to patent infringement, claims that were
previously adjudicated against him, and he has failed to al-
lege sufficient additional facts to indicate otherwise.3 We
3 The July 30, 2002 letter, for example is not suffi-
cient. See Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-147C);
see also Appellant’s Reply Br. 2, 12. The government as-
serted in the letter that “there is no infringement of the
’134 patent.” Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-
147C). The government then provided an alternative
Case: 20-2091 Document: 43 Page: 7 Filed: 03/11/2021

-- 7 of 9 --

BONDYOPADHYAY v. US 8
therefore affirm the finding of res judicata for the infringe-
ment claims.
We next consider the dismissal of Dr. Bondyopadhyay’s
takings claim. Dr. Bondyopadhyay argues that the doc-
trine of res judicata does not apply. See Appellant’s Br. 15.
He refers to a “Constitutional Order of exclusive right for
limited times” and requests that this court “restore” his
“Constitutional right to make a living.” See id. at 7, 11, 13,
16. The government responds that Dr. Bondyopadhyay al-
ready brought an identical takings claim and litigated it to
a final judgment, so the doctrine of res judicata resolves
this issue. See Appellee’s Br. 8, 11–12. Our precedent dic-
tates that “the Claims Court does not have jurisdiction to
hear takings claims based on alleged patent infringement
by the government.” Golden v. United States, 955 F.3d 981,
986–88 (Fed. Cir. 2020). “Those claims . . . are to be pur-
sued exclusively under 28 U.S.C. § 1498,” id. at 988, as pa-
tent infringement claims. As patent infringement, those
claims have previously been adjudicated and, as indicated
above, are now barred under res judicata.
Finally, to the extent that Dr. Bondyopadhyay chal-
lenges the Claims Court’s conclusion regarding his claims
based on alleged governmental fraud, we conclude that the
court lacked subject matter jurisdiction. “The plain lan-
guage of the Tucker Act excludes from the Court of Federal
Claims[’s] jurisdiction claims sounding in tort.” Rick’s
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008); see U.S.C. § 1491(a)(1). “[F]raud as a
argument for non-infringement, stating that “even if the
’134 patent were found to be valid and infringed, we are of
the opinion that the performance under the five contracts
falls within the experimental use exception to patent in-
fringement.” Id. (emphasis added). Dr. Bondyopadhyay
failed to explain how the government’s repeated denial of
infringement in this letter constitutes an admission.
Case: 20-2091 Document: 43 Page: 8 Filed: 03/11/2021

-- 8 of 9 --

BONDYOPADHYAY v. US 9
cause of action lies in tort.” Brown v. United States, 105
F.3d 621, 623 (Fed. Cir. 1997). Thus, the court properly
dismissed Dr. Bondyopadhyay’s fraud claims for lack of ju-
risdiction.
Because we conclude that the Claims Court did not err
in dismissing Dr. Bondyopadhyay’s claims that are at issue
on appeal for reasons of res judicata or for lack of jurisdic-
tion, we do not need to reach the issue of whether his claims
were filed outside of the applicable statute of limitations.
Finally, on January 28, 2021, Dr. Bondyopadhyay filed
a “motion for special leave” to introduce additional infor-
mation dated March 31, 2020. We normally do not consider
supplemental material submitted after briefing unless it
was previously unavailable. See, e.g., Landreth v. United
States, 797 Fed. App’x 521, 524 (Fed. Cir. 2020). We there-
fore deny this motion. On February 12, 2021, Dr. Bondyo-
padhyay filed a memorandum in lieu of oral argument.
Dr. Bondyopadhyay first restates arguments already pre-
sented in his briefs, which we carefully considered.
Dr. Bondyopadhyay’s also moves for settlement of his fi-
nancial claim, which is moot in view of our affirmance of
the Claims Court’s dismissal of his legal claims.
CONCLUSION
We have considered Dr. Bondyopadhyay’s remaining
arguments and conclude that they are without merit. For
the reasons discussed above, we affirm the judgment of the
Claims Court.
AFFIRMED
Case: 20-2091 Document: 43 Page: 9 Filed: 03/11/2021

-- 9 of 9 --