Case: 21-2126 Document: 26 Page: 1 Filed: 10/05/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MORRIS S. GLOVER,
Plaintiff-Appellant
v.
DANIEL E. COHEN, BRUCE C. JOHNSON,
CREATIVE INTEGRATION & DESIGN, INC.,
Defendants-Appellees
SUZANNE KAMEESE, LOWELL FRENCH,
Defendants
______________________
2021-2126
______________________
Appeal from the United States District Court for the
Western District of Pennsylvania in No. 2:19-cv-00734-
WSH, Judge W. Scott Hardy.
______________________
Decided: October 5, 2022
______________________
MORRIS S. GLOVER, Bedford Heights, OH, pro se.
KURT JOHN NIEDERLUECKE, Fredrikson & Byron, PA,
Minneapolis, MN, for defendants-appellees. Also repre-
sented by CARA S. DONELS, Des Moines, IA.
______________________
Case: 21-2126 Document: 26 Page: 2 Filed: 10/05/2022
2 GLOVER v. COHEN
Before DYK, TARANTO, and STARK, Circuit Judges.
PER CURIAM.
Morris S. Glover (“Glover”) appeals the final judgment
of the United States District Court for the Western District
of Pennsylvania following dismissal with prejudice of his
complaint, which largely concerns the prior litigation
Glover v. CNS, Inc., No. 95-02227 (N.D. Ohio). For the rea-
sons below, we affirm.
I
Glover owns expired utility and design patents, U.S.
Patent Nos. 5,466,456 (issued November 14, 1995) and
D351,924 (issued October 25, 1994), which concern a facial
cleanser and an ornamental design for a facial cleanser, re-
spectively. In the current litigation, Glover appears to
maintain his assertion, first made over twenty-five years
ago, that his patents were infringed by a product called the
Breathe Right® dilator, manufactured and sold by CNS,
Inc. (“CNS”).
In 1995, Glover sued CNS in the United States District
Court for the Northern District of Ohio for infringing his
patents. During that litigation, one of the Defendants in
the current case, Bruce C. Johnson (“Johnson”), submitted
a declaration asserting that he was the primary inventor of
the Breathe Right® dilator and that he had transferred his
rights in the device to Creative Integration & Design, Inc.
(“CID”), which in turn granted CNS an exclusive license
concerning the device. Johnson maintained that Glover
had nothing to do with the invention of the Breathe Right®
device. Similarly, current-Defendant Daniel E. Cohen
(“Cohen”), then associated with CNS, submitted a declara-
tion that Glover had nothing to do with the Breathe Right®
device. The District Court eventually granted CNS’s mo-
tion for summary judgment, finding no infringement.
Case: 21-2126 Document: 26 Page: 3 Filed: 10/05/2022
GLOVER v. COHEN 3
Glover appealed, and we affirmed. See Glover v. CNS, Inc.,
111 F.3d 144 (1997) (per curiam).
In the instant case, brought in 2019, Glover appears to
again assert that the Breathe Right® dilator infringes his
patents. He alleges that in 1987 he submitted the idea for
his invention to American Idea Management Corporation
(“AIM”), an entity associated with Defendants Suzanne
Kameese and Lowell French. Glover contends that AIM
improperly conveyed his idea to Defendant CID, which in
turn improperly conveyed his idea to Defendant Johnson.
He also attacks various aspects of the evidence in the prior
litigation.
The caption of Glover’s Complaint indicates his claims
are for “[p]atent infringement, conspiracy for a summary
judgment making Plaintiff’s patents invalid,” “[d]enial of
due process of law, VII Amendment to the Constitution
which renders a void judgment,” and “
42 U.S.C. §§ 1983,
1985, 1986.” Complaint at 1, Glover v. Cohen, No. 19-00734
(W.D. Pa. June 26, 2019). In his prayer for relief, Glover
sought to void the summary judgment ruling from the prior
litigation, reinstate his patents, and be provided an oppor-
tunity to demonstrate infringement in a jury trial.
Kameese, CID and Johnson, and Cohen filed three sep-
arate motions to dismiss, each of which the District Court
granted. 1 Glover timely appealed. We have jurisdiction
pursuant to
28 U.S.C. § 1295(a)(1).
1 Glover thereafter filed a “Motion: Objection to the
Court’s ‘Memorandum Opinion,’” which the District Court
construed as an untimely motion for reconsideration, but
nonetheless considered and denied. See Memorandum Or-
der denying Plaintiff’s “Motion: Objection to the Court’s
Memorandum Opinion,” Glover v. Cohen, No. 19-00734
(W.D. Pa. Mar. 25, 2021).
Case: 21-2126 Document: 26 Page: 4 Filed: 10/05/2022
4 GLOVER v. COHEN
II
We apply the law of the applicable regional circuit, here
the Third Circuit, on issues of procedural law that do not
implicate patent law, while we apply the law of our own
circuit to issues of patent law. See Landmark Screens, LLC
v. Morgan, Lewis, & Bockius, LLP,
676 F.3d 1354, 1361
(Fed. Cir. 2012). Thus, we apply regional circuit law to dis-
missals under Fed. R. Civ. P. 12(b)(6), see Endo Pharms.
Inc. v. Teva Pharms. USA, Inc.,
919 F.3d 1347, 1352 (Fed.
Cir. 2019); applications of issue preclusion, see Voter Veri-
fied, Inc. v. Election Sys. & Software LLC,
887 F.3d 1376,
1382 (Fed. Cir. 2018); 2 and statute of limitations rulings,
see
id.
Like the Third Circuit, we review a pro se litigant’s sub-
missions liberally. See Higgs v. Atty. Gen. of the U.S.,
655
F.3d 333, 339 (3d Cir. 2011); In re Steed,
802 F.3d 1311,
1317 (Fed. Cir. 2015).
We apply de novo review to a Rule 12(b)(6) dismissal.
See Endo Pharms., 919 F.3d at 1352 (applying Third Cir-
cuit law). “To survive a motion to dismiss for failure to
state a claim, a complaint must allege enough facts to state
a claim to relief that is plausible on its face.” Id. (internal
quotation marks omitted). Here, Glover failed to state any
claim upon which relief could be granted.
A
Concerning patent infringement, Glover failed to state
a claim upon which relief can be granted because his suit
is barred by issue preclusion. Issue preclusion can be a
proper basis for a Rule 12(b)(6) dismissal. See Leyse v.
Bank of Am. Nat’l Ass’n,
804 F.3d 316, 320 (3d Cir. 2015).
2 Even if we were to conclude that Federal Circuit
law applies to issue preclusion, the result would be the
same.
Case: 21-2126 Document: 26 Page: 5 Filed: 10/05/2022
GLOVER v. COHEN 5
Under this doctrine, a party cannot relitigate an issue that
has already been litigated. See Peloro v. United States,
488
F.3d 163, 175 (3d Cir. 2007). That is the situation here.
Glover litigated the same issue – patent infringement by
the Breathe Right® dilator – in the Northern District of
Ohio action and cannot relitigate that issue now.
The Third Circuit generally applies plenary review to
determinations of issue preclusion. See Jean Alexander
Cosmetics, Inc. v. L’Oreal USA, Inc.,
458 F.3d 244, 247-49
(3d Cir. 2006) (noting abuse of discretion review for non-
mutual offensive collateral estoppel). In the Third Circuit,
the prerequisites for applying issue preclusion are
(1) the issue sought to be precluded [is] the same as
that involved in the prior action; (2) that issue
[was] actually litigated; (3) it [was] determined by
a final and valid judgment; and (4) the determina-
tion [was] essential to the prior judgment. . . . For
defensive collateral estoppel – a form of non-mu-
tual issue preclusion – to apply, the party to be pre-
cluded must have had a “full and fair” opportunity
to litigate the issue in the first action.
Peloro,
488 F.3d at 174-75 (internal quotation marks omit-
ted).
Here, all of these prerequisites are met. First, the
same issue – whether the Breathe Right® dilator infringes
Glover’s patents – was at issue in the prior action. Second,
the issue was actually litigated; the District Court ex-
pressly determined there was no infringement. Third, the
issue was determined by a final and valid judgment, which
was entered by the District Court and affirmed by us.
Fourth, the issue was necessary to the District Court’s de-
cision; the Court grant of summary judgment was premised
on the finding of no infringement. Finally, Glover had a
full and fair opportunity to litigate and, in fact, did litigate
the issue of infringement in both the District Court and
this Court.
Case: 21-2126 Document: 26 Page: 6 Filed: 10/05/2022
6 GLOVER v. COHEN
Because Glover is barred by the doctrine of issue pre-
clusion from proceeding with his claim of patent infringe-
ment, we need not address any other potential deficiencies
in this claim.
B
Glover also failed to state any claim upon which relief
could be granted concerning a conspiracy to invalidate his
patents in the prior litigation or that the grant of summary
judgment denied him due process and violated his Seventh
Amendment right to a jury trial. Relatedly, he failed to
state any claim upon which relief could be granted with re-
spect to
42 U.S.C. §§ 1983, 1985, and 1986.
All of these claims arise from the prior litigation. As
an initial matter, we note that, contrary to Glover’s beliefs,
the District Court never invalidated his patents in that lit-
igation. Glover’s patents expired naturally, as do all pa-
tents granted by the federal government.
A valid and proper grant of summary judgment, pre-
ceded by the litigants having had a full and fair oppor-
tunity to litigate, does not violate the Seventh Amendment.
See, e.g., In re TMI Litig.,
193 F.3d 613, 725 (3d Cir. 1999).
Nor do such circumstances amount to a violation of due
process. See Kehoe v. Int’l Ass’n of Theatrical Stage Emps.
Loc. 21, 682 F. App’x 161, 163 (3d Cir. 2017).
Finally, any possible §§ 1983, 1985, or 1986 claim is
barred by the applicable statute of limitations. The statute
of limitations for a § 1983 claim is the same as the perti-
nent state’s statute of limitations for personal injury torts,
which is two years in both Ohio (where Glover brought his
earlier action) and Pennsylvania (where he brought the in-
stant action). 3 See Wallace v. Kato,
549 U.S. 384, 387
3 Although § 1983 was amended in 1996, the four-
year statute of limitations in
28 U.S.C. § 1658 does not
Case: 21-2126 Document: 26 Page: 7 Filed: 10/05/2022
GLOVER v. COHEN 7
(2007); Kach v. Hose,
589 F.3d 626, 634 (3d Cir. 2009) (two
years under Pennsylvania law); Browning v. Pendleton,
869 F.2d 989, 992 (6th Cir. 1989) (en banc) (two years un-
der Ohio law).
The same two-year statute of limitations applies to
Glover’s § 1985 claim. See Dique v. N.J. State Police,
603
F.3d 181, 189 (3d Cir. 2010) (applying state law statute of
limitations to § 1985); Bougher v. Univ. of Pittsburgh,
882
F.2d 74, 79 (3d Cir. 1989) (two years under Pennsylvania
law); Dotson v. Lane, 360 F. App’x 617, 619 n.2 (6th Cir.
2010) (two years under Ohio law).
Section 1986, by its very terms, carries a one-year stat-
ute of limitations. See
42 U.S.C. § 1986; Fitzgerald v. Lar-
son,
741 F.2d 32, 34 n.2 (3d Cir. 1984), vacated on other
grounds,
471 U.S. 1051 (1985).
Each of these causes of action (i.e., claims under
§§ 1983, 1985, and 1986) accrued “when the plaintiff knew
or should have known of the injury upon which [his] action
is based.” See, e.g., Kach, 589 F.3d at 634 (concerning ac-
crual under § 1983). Glover’s allegations concern events
that happened at least twenty years ago. His claims were
brought well after the one- and two-year statutes of limita-
tions had expired. 4 Further, Glover presents no argument
apply, because Glover’s claim was not made possible by the
1996 amendment. See Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382-83 (2004); Federal Courts Improvement
Act of 1996,
Pub. L. No. 104-317, § 309(c),
110 Stat. 3847,
3853 (1996). Even if the four-year statute of limitations
applied, Glover’s claim would still be barred.
4 To the extent Glover relies on
18 U.S.C. § 241,
which is a criminal statute without any private right of ac-
tion, see United States v. City of Phila.,
644 F.2d 187 (3d
Cir. 1980), overruled on other grounds by Leatherman v.
Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507
Case: 21-2126 Document: 26 Page: 8 Filed: 10/05/2022
8 GLOVER v. COHEN
or evidence to support any equitable tolling (assuming such
tolling is even possible). Thus, his claims are barred.
C
It appears that Glover did not request leave to amend
his Complaint before the District Court and does not do so
on appeal either. Regardless, in light of our analysis, any
amendment would be futile. See generally Alston v. Parker,
363 F.3d 229, 235-36 (3d Cir. 2004) (requiring opportunity
to amend unless futile), abrogated on other grounds by Ash-
croft v. Iqbal,
556 U.S. 662, 678 (2009).
III
We realize that Glover continues to believe his intellec-
tual property was stolen. But Glover already litigated his
patent infringement claim, and the time for litigating his
remaining claims, to the extent they are actionable, has
long since passed. Therefore, we affirm the judgment of
the District Court.
AFFIRMED
COSTS
No costs.
U.S. 163 (1993), any such claim also fails. Only the federal
government can prosecute a violation of that statute. See,
e.g., Watson v. Washington Twp. of Gloucester Cnty. Pub.
Sch. Dist., 413 F. App’x 466, 468 (3d Cir. 2011).
