Probir Kumar Bondyopadhyay v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PROBIR KUMAR BONDYOPADHYAY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2155
______________________
Appeal from the United States District Court for the
Southern District of Texas in No. 4:22-cv-02204, Judge
Keith P. Ellison.
______________________
Decided: February 22, 2023
______________________
P ROBIR K UMAR BONDYOPADHYAY , Houston, TX, pro se.
N ELSON K UAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
SCOTT D AVID B OLDEN, BRIAN M. BOYNTON, G ARY L EE
HAUSKEN.
______________________
Case: 22-2155 Document: 27 Page: 1 Filed: 02/22/2023

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BONDYOPADHYAY v. US 2
Before M OORE, Chief Judge, L OURIE and D YK, Circuit
Judges.
P ER CURIAM
Dr. Probir K. Bondyopadhyay appeals a decision of the
United States District Court for the Southern District of
Texas dismissing his complaint for failure to state a claim
upon which relief can be granted. For the following rea-
sons, we affirm.
BACKGROUND
Dr. Bondyopadhyay owns U.S. Patent No. 6,292,134.
This is his third appeal regarding the ’134 patent. Rele-
vant here, on November 27, 2019, Dr. Bondyopadhyay filed
a complaint against the United States in the Court of Fed-
eral Claims, which the court construed as alleging infringe-
ment of the ’134 patent, fraudulent or false conduct by the
government, and a patent-based Takings Clause claim.
Bondyopadhyay v. United States, 149 Fed. Cl. 176, 178
(2020) (Bondyopadhyay III), aff’d, 850 F. App’x 761 (Fed.
Cir. 2021) (Bondyopadhyay IV). The United States moved
to dismiss the complaint as barred by the doctrine of res
judicata and for lack of subject-matter jurisdiction. Bon-
dyopadhyay III, 149 Fed. Cl. at 183. The Court of Federal
Claims determined Dr. Bondyopadhyay’s infringement
claims were barred under res judicata because of a non-in-
fringement judgment entered against him in 2014. See
Bondyopadhyay IV, 850 F. App’x at 762–63 (citing Bondy-
opadhyay v. United States, 136 Fed. Cl. 114, 116 (2018)
(Bondyopadhyay I), aff’d, 848 F. App’x 301 (Fed. Cir. 2018)
(Bondyopadhyay II)). Regarding his takings claim and
fraud claim, the Court of Federal Claims dismissed for lack
of jurisdiction. Id. at 763. We affirmed the Court of Fed-
eral Claims’ dismissal of Dr. Pondyopadhyay’s claims. Id.
at 764–65.
On July 5, 2022, Dr. Bondyopadhyay filed a complaint
in the Southern District of Texas, alleging Bondyopadhyay
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BONDYOPADHYAY v. US 3
III “failed to differentiate between” Article I’s grant of
power to Congress to promote the progress of science and
the useful arts and the Fifth Amendment’s Takings Clause.
See S. App’x 16. Specifically, he alleges he is entitled to
“enforcement of a U.S. Constitutional Order . . . arising out
of unauthorized use of a patented invention” by the Air
Force, which he refers to as a “Jeffersonian Claim.” S.
App’x 14, 17. He also argues that when the Air Force up-
dates its system that system will then infringe his U.S. Pa-
tent No. 11,296,408. S. App’x 15. The United States moved
to dismiss under Rules 12(b)(1) and Rule 12(b)(6). The dis-
trict court granted the motion under Rule 12(b)(6). S.
App’x 1–3. Dr. Bondyopadhyay appeals. We have jurisdic-
tion over the claims regarding the ’134 patent under 28
U.S.C. § 1295(a)(1).
D ISCUSSION
We review the district court’s dismissal under regional
circuit law, here the Fifth Circuit. In re TLI Commc’ns LLC
Pat. Litig., 823 F.3d 607, 610 (Fed. Cir. 2016). The Fifth
Circuit reviews “motions to dismiss pursuant
to Rule 12(b)(6) de novo, accepting all well-pleaded facts as
true and viewing those facts in the light most favorable to
the plaintiff.” Balle v. Nueces Cnty., 952 F.3d 552, 556 (5th
Cir. 2017) (internal citation and quotation marks omitted).
We may affirm a dismissal under Rule 12(b)(6) on any
ground supported by the record, including for lack of stand-
ing. Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006).
Res judicata may be applied on a Rule 12(b)(6) motion
where its application “is apparent from the complaint and
judicially noticed facts and the plaintiff fails to challenge
the defendant’s failure to plead it as an affirmative de-
fense.” Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311,
314 (5th Cir. 2020).
Dr. Bondyopadhyay argues his “Jeffersonian Claim” is
not a Takings Clause claim. Appellant’s Informal Opening
Br. at 7. He argues that the district court failed to assess
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BONDYOPADHYAY v. US 4
infringement of the ’134 patent “against the offending” Air
Force program. Id. at 7–8. Whether this claim is brought
under the Fifth Amendment or under the Patent Act, Dr.
Bondyopadhyay has already litigated these claims several
times without success. See Bondyopadhyay I, 850 F. App’x
at 762–65 (“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.”). We
affirm the district court’s dismissal based on res judicata.
To the extent Dr. Bondyopadhyay alleges he is entitled
to relief due to the Air Force’s future infringement of the
’408 patent by implementing any “design corrections”
taught by the ’408 patent’s “simpler, cheaper[,] and faster”
design, that alleged future injury is “conjectural or hypo-
thetical.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992) (internal citations and quotation marks omitted).
We therefore affirm the district court’s dismissal of that
claim for lack of jurisdiction.
AFFIRMED
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