NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PROBIR KUMAR BONDYOPADHYAY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1674
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00147-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: September 7, 2018
______________________
PROBIR KUMAR BONDYOPADHYAY, Houston, TX, pro se.
ALICE SUH JOU, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
GARY LEE HAUSKEN, CHAD A. READLER.
______________________
2 BONDYOPADHYAY v. UNITED STATES
Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
PER CURIAM.
Dr. Probir Kumar Bondyopadhyay, proceeding pro se,
appeals from the U.S. Court of Federal Claims’ (“Claims
Court”) entry of summary judgment in favor of the gov-
ernment finding that a prototype antenna solicited by the
U.S. Air Force (“Air Force”) does not infringe certain
claims of
U.S. Patent No. 6,292,134 (“the ’134 patent”)
based on its construction of the term “sphere.” Because
the Claims Court did not err in its claim construction or
in its noninfringement analysis, we affirm.
I. BACKGROUND
A. The ’134 Patent
Dr. Bondyopadhyay is the owner and named inventor
of the ’134 patent, titled “geodesic sphere phased array
antenna system.” 1 The ’134 patent “relates, in general, to
phased array antennas which provide hemispherical or
wider coverage for multi-satellite communications,” and,
more particularly relates “to a phased array antenna
mounted on a geodesic sphere and adapted for multi-band
communications with satellites in earth orbits.” ’134
patent, col. 1, ll. 8–13.
The specification explains that a phased array anten-
na system is a collection of smaller antenna elements that
operate synchronously to create a stronger communica-
tion signal than that of a single antenna. This synchroni-
zation is accomplished by aligning the “phases” of the
1 The ’134 patent issued on September 18, 2001, but
expired on September 18, 2009 for failure to pay required
maintenance fees. The ’134 patent was reinstated on
April 29, 2015 when the U.S. Patent and Trademark
Office granted Dr. Bondyopadhyay’s September 4, 2014
petition under
37 C.F.R. § 1.378(b).
BONDYOPADHYAY v. UNITED STATES 3
antenna elements—the sinusoidal curves that send a
communication signal.
Id. col. 1, ll. 51–57. To align these
sinusoidal curves, the antennas are connected by a “feed
structure” that energizes electromagnetic signals to each
of the individual antennas in the array.
Id.
The specification repeatedly refers to the ability of the
system to provide hemispherical, or 180 degree, communi-
cation coverage.
Id. col. 1, ll. 57–64 (stating that
“[h]emispherical or wider communication coverage by
phased array antenna systems has been realized” by
certain means);
id. col. 2, ll. 11–15 (describing “useful,
albeit costly phased array antenna systems that are
capable of providing hemispherical communication cover-
age”);
id. col. 3, ll. 50–53 (“It is the main objective of the
present invention to create a low cost phased array an-
tenna architecture that will provide communication
coverage over the entire hemisphere.”). Indeed, it de-
scribes “the present invention” as a phased array antenna
that “comprises a plurality of substantially equilateral
triangular-shaped planar subarray units” that are “ar-
ranged in a geodesic sphere configuration derived from a
regular or semi-regular polyhedron and mounted on a
geodesic structure of corresponding configuration.”
Id.
col. 3, l. 66–col. 4, l. 6 (emphasis added). One embodiment
of the invention is depicted in Figure 2A, reproduced
below:
4 BONDYOPADHYAY v. UNITED STATES
Claim 14, one of the three claims that Dr. Bondyo-
padhyay asserted against the government, recites:
14. A geodesic sphere phased array antenna system
for multi-satellite communications and tracking, said
antenna system comprising:
a geodesic structure derived from a truncated ico-
sahedron having twelve pentagonal and twenty
hexagonal planar faces, a plurality of said geodes-
ic planar surfaces each having mounted thereon a
subarray of planar antenna element units;
transmit and receive signal processing means
connected to each said planar antenna element
unit of each said subarray for simultaneous
transmission and reception of signals;
electromagnetic signal feed means connected to
each said planar antenna element unit of each
said subarray for forming at least one electromag-
netic beam in space;
electronic switching means for selectively connect-
ing each said planar antenna element unit of said
subarrays to adjacent planar antenna element
unit of said subarray or adjacent subarrays for
generating multiple electromagnetic beams in se-
lective diverse directions in space;
electronic phase shifting means connected to each
said planar antenna element of each said subar-
ray for providing electronic scanning capability to
said subarrays of antenna element units connect-
ed by said electronic switching means with the
phased array communication space being seg-
mented into a plurality of smaller cellular spaces,
each said cellular communication space for elec-
tronic scanning being defined by a plurality of dis-
crete chosen directions corresponding to the said
BONDYOPADHYAY v. UNITED STATES 5
geodesic sphere phased array structure and, each
said cellular communication space adapted to be
electronically scanned by a plurality of active said
contiguous phased subarrays corresponding to the
said cellular communication space.
’134 patent, col. 14, ll. 33–67 (emphases added). Claim 25
similarly recites “[a] geodesic sphere phased array anten-
na system” comprising “a geodesic structure . . . having a
plurality of planar faces forming a geodesic three dimen-
sional structure,” but does not specify the structure(s) or
number of planar surfaces.
Id. col. 16, ll. 14–47. Finally,
claim 26, which depends from claim 25, specifies that
“said geodesic structure is derived from any of the fifteen
semi-regular polyhedral which is a member of” a particu-
lar class of solids.
Id. col. 16, ll. 48–58.
B. Procedural History
On February 24, 2014, Dr. Bondyopadhyay brought
suit against the government in the Claims Court, assert-
ing primarily that the Air Force infringed claims of the
’134 patent by “developing and manufacturing” a proto-
type geodesic dome phased-array antenna (“GDPAA”) for
future public use in cooperation with non-party contrac-
tors, including Ball Aerospace. Dr. Bondyopadhyay
further asserted that the Air Force engaged in “procure-
ment fraud” originating in 1999 and took his property
without just compensation in violation of the Fifth
Amendment to the U.S. Constitution.
On March 20, 2015, the Claims Court dismissed all of
Dr. Bondyopadhyay’s non-patent claims and dismissed his
patent infringement claim to the extent it was premised
on acts occurring on or before January 11, 2008, in light of
the applicable statute of limitations. 2 The Claims Court
2 The Claims Court also dismissed Dr. Bondyo-
padhyay’s infringement claims arising after the fees-
6 BONDYOPADHYAY v. UNITED STATES
then issued a claim construction order, construing the
term “sphere” to mean “greater than a hemisphere so as
to provide the phased array antenna hemispherical or
wider coverage.” Bondyopadhyay v. United States,
129
Fed. Cl. 793 (Fed. Cl. 2017) (“Claim Construction Order”).
In reaching this construction, the Claims Court
(1) concluded that the preamble of the claims is limiting,
id. at 802–04; (2) relied on passages in the specification
describing the invention’s spherical shape and ability to
provide “hemispherical coverage,”
id. at 805–07; and
(3) implicitly credited testimony from the government’s
experts that,
For a geodesic sphere phased array antenna to
provide coverage over an entire hemisphere—from
horizon to horizon—the area covered by such an-
tenna must be greater than a hemisphere because
there must be energized phased array antenna el-
ements 73 below the “equator” line in order to pro-
ject the electromagnetic beam towards the cellular
communication space 71 located on the horizon.
Id. at 798–99. Dr. Bondyopadhyay then filed initial and
supplemental infringement contentions—identifying
claims 14, 25, and 26 as the ones allegedly infringed—and
the government thereafter moved for summary judgment
of noninfringement.
The Claims Court granted the government’s motion
on February 9, 2018, finding there to be no dispute of
material fact that the sole accused apparatus, the six-
panel “Ball Advanced Technology Demonstration anten-
na” depicted below, does not infringe any of the asserted
related expiration of the ’134 patent, but both sides agree
that this dismissal became moot after the patent was
reinstated.
BONDYOPADHYAY v. UNITED STATES 7
claims, either literally or under the doctrine of equiva-
lents.
Bondyopadhyay v. United States,
136 Fed. Cl. 114, 120,
124 (2018) (“Summary Judgment Order”). In particular,
the Claims Court found there to be no dispute that this
six-panel antenna, which spans 120 degrees, meets nei-
ther the structural nor coverage definitions required
under its claim construction.
Id. at 121–22.
Dr. Bondyopadhyay timely appeals. We have jurisdic-
tion pursuant to
28 U.S.C. § 1295(a)(3). 3
3 Dr. Bondyopadhyay’s opening brief describes the
U.S. District Court for the Southern District of Texas as
the “original trial court” in this case and includes an
October 2013 order dismissing his complaint in Bondyo-
padhyay v. Sec’y of Defense, No. 4:13-cv-01914 (S.D. Tex.).
Appellant Br. 1, 10. The government has also indicated
that Dr. Bondyopadhyay filed several other cases against
it in that court, all of which were dismissed prior to his
initiation of the instant lawsuit in the Claims Court. See
8 BONDYOPADHYAY v. UNITED STATES
II. DISCUSSION
Dr. Bondyopadhyay’s appeal primarily concerns the
construction of the term “sphere.” He contends that the
Claims Court failed to consider the claims’ various de-
scriptions of what constitutes a “geodesic structure,” and
submits that these descriptions explain that the word
“sphere,” in the context of the invention, means “spheri-
cal,” not necessarily a full sphere, and that a “geodesic
dome” is a special geodesic sphere that constitutes about
half of the sphere. He also argues that, even if the Air
Force has not yet completed a fully operative GDPAA, the
Claims Court erred in finding that the accused six-panel
prototype does not infringe.
The Claims Court did not err either in its construction
of the term “sphere” or in its noninfringement conclu-
sions. “[T]he ultimate issue of the proper construction of
a claim should be treated as a question of law.” Teva
Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 839
(2015). To ascertain the scope and meaning of the assert-
ed claims, we look to the words of the claims themselves,
the specification, the prosecution history, and any rele-
vant extrinsic evidence. Phillips v. AWH Corp.,
415 F.3d
1303, 1315–17 (Fed. Cir. 2005) (en banc). We review any
“subsidiary factual findings [regarding extrinsic evidence]
under the ‘clearly erroneous’ standard.” Teva, 135 S. Ct.
at 839.
It is a “bedrock principle” of patent law that “‘the
claims of a patent define the invention to which the
patentee is entitled the right to exclude.’” Phillips, 415
F.3d at 1312 (quoting Innova/Pure Water, Inc. v. Safari
Appellee Br. 1. To the extent Dr. Bondyopadhyay chal-
lenges the district court’s dismissal of any of those actions
through this appeal, we lack jurisdiction over any such
challenges.
BONDYOPADHYAY v. UNITED STATES 9
Water Filtration Sys. Inc.,
381 F.3d 1111, 1115 (Fed. Cir.
2004)). Claim terms should be given their ordinary and
customary meaning as used in the field of invention,
which is the meaning a claim term would have to a skilled
artisan at the time of the invention.
Id. at 1312–13.
Moreover, a person of ordinary skill in the art is “deemed
to read the claim term not only in the context of the
particular claim in which the disputed term appears, but
in the context of the entire patent, including the specifica-
tion.” Id. at 1313.
First, the Claims Court correctly concluded that the
preamble of each claim—“[a] geodesic sphere phased
array antenna system for multi-satellite communications
and tracking, said invention comprising . . .”—is limiting.
Claim Construction Order, 129 Fed. Cl. at 802–04. A
preamble may limit the scope of a patent claim if it acts
as a necessary component of the claimed invention by
providing an antecedent basis from which limitations in
the body of the claim are derived. Pacing Techs., LLC v.
Garmin Int’l, Inc.,
778 F.3d 1021, 1024 (Fed. Cir. 2015).
The preamble is also limiting if it “recites essential struc-
ture that is important to the invention or necessary to
give meaning to the claim.” Bicon, Inc. v. Straumann Co.,
441 F.3d 945, 952 (Fed. Cir. 2006) (internal quotation
marks omitted). Whether the preamble is limiting de-
pends “on the facts of each case in light of the claim as a
whole and the invention described in the patent.” Storage
Tech. Corp. v. Cisco Sys., Inc.,
329 F.3d 823, 831 (Fed. Cir.
2003).
In each claim, the phrase “geodesic sphere phased
array antenna system” provides an antecedent basis from
which a limitation in the body is derived. See ’134 patent,
col. 14, ll. 60–67 (requiring that “each said cellular com-
munication space for electronic scanning [is] defined by a
plurality of discrete chosen directions corresponding to the
said geodesic sphere phased array structure” (emphasis
added));
id. col. 16, ll. 40–47 (same). The title of the
10 BONDYOPADHYAY v. UNITED STATES
patent and its specification further support the notion
that the only phased array antenna structure claimed is
in the shape of a geodesic sphere. Indeed, the detailed
description refers to the “present invention” as being a
“geodesic sphere phased array antenna.”
Id. col. 6, ll. 24–
25. These factors persuade us that the preamble is limit-
ing. See Deere & Co. v. Bush Hog, LLC,
703 F.3d 1349,
1358 (Fed. Cir. 2012) (finding the term “rotary cutter
deck” in the preamble to be limiting where the term
describes a “fundamental characteristic of the claimed
invention” and the specification refers to the “present
invention” as “an improved deck for a rotary cutter” or a
“rotary cutter deck”).
Given our conclusion that the phrase “geodesic sphere
phased array antenna” is a claim limitation, we must next
determine whether the Claims Court properly construed
the term “sphere” within that phrase to mean “greater
than a hemisphere so as to provide the phased array
antenna hemispherical or wider coverage.” Claim Con-
struction Order, 129 Fed. Cl. at 807. We conclude that it
did.
As a starting point, the plain and ordinary meaning of
the word “sphere” connotes a three-dimensional 360-
degree ball with a uniform diameter. A construction
requiring that the antenna cover the full 360 degrees,
however, cannot be the meaning that the patentee in-
tended. First, some embodiments, such as the one depict-
ed in Figure 2A, are described as being “less than a full
sphere but greater than a sphere,” suggesting that the
word “sphere,” standing alone, means something other
than a full, 360-degree sphere. ’134 patent, col. 6, ll. 55–
56; see also id. col. 8, ll. 29–31 (“The geodesic sphere
phased array antenna to be constructed for hemispherical
coverage will be larger than the hemisphere but less than
a full sphere.”). Similarly, Figure 2A depicts a ground-
based geodesic structure covering more than a hemi-
sphere mounted on top of a non-spherical platform. Id.
BONDYOPADHYAY v. UNITED STATES 11
Fig. 2. And other embodiments, such as the one recited in
claim 13 and described in the specification, include the
modifier “full” before the phrases “geodesic sphere” and
“geodesic spherical structure,” lending further support to
the understanding that, according to the ’134 patent, a
geodesic sphere need not cover the full 360 degrees. Id.
col. 6, ll. 40–44; id. col. 7, ll. 51–52.
What portion, then, of the surface area of a “full
sphere” must a “geodesic sphere” comprise? In the pro-
ceedings below, Dr. Boundyopadhyay argued that a
“geodesic sphere” could be “ten (10%), fifty percent (50%)
or more up to even [one] hundred percent (100%),” de-
pending “on the specific applications . . . for which the
spherical phased array antenna is built and utilized.”
Claim Construction Order, 129 Fed. Cl. at 802. The
government submitted that a “geodesic sphere” must
comprise at least 50% of the surface area of a sphere—i.e.,
it must be at least a hemisphere. Id. The Claims Court
agreed with the government. So do we.
The specification repeatedly and uniformly describes
the “present invention” as being greater than a hemi-
sphere to provide “hemispherical or wider coverage.” ’134
patent, col. 1, ll. 8–14 (“This invention relates, in general,
to phased array antennas which provide hemispherical or
wider coverage for multi-satellite communications and
more particularly to a phased array antenna mounted on
a geodesic sphere and adapted for multi-band communica-
tions with satellites . . . .” (emphases added)); id. col. 3, ll.
49–52 (“It is the main objective of the present invention to
create a low cost phased array antenna architecture that
will provide communication coverage over the entire
hemisphere.” (emphases added)); id. col. 8, ll. 29–34 (“The
geodesic sphere phased array antenna to be constructed
for hemispherical coverage will be larger than the hemi-
sphere but less than a full sphere. Depending on the array
antenna gain required for specific applications, the geo-
desic sphere array structure may extend in elevation
12 BONDYOPADHYAY v. UNITED STATES
space from -45°> through +90° (zenith) which is ¾th
sphere.” (emphases added)). As the Claims Court pointed
out, the specification defines the antenna’s surface area in
precise, mathematical terms: “The geodesic sphere
phased array antenna structure is designed to provide
greater than hemispherical coverage and in the present
invention, the elevation angle of the structure extends
from +90° through -θ° where θ° could be 45° to 30°.” Id.
col. 6, ll. 36–40. The Claims Court then relied on the
undisputed testimony of the government’s expert that,
viewing the geodesic sphere vertically, this statement
requires that the geodesic sphere be extended between
30° and 45° below the horizon, such that it covers more
than a hemisphere, a finding to which we owe deference
under Teva. Claim Construction Order, 129 Fed. Cl. at
805–06. Where, as here, the patent “describes the fea-
tures of the ‘present invention’ as a whole, this description
limits the scope of the invention.” TiVo, Inc. v. EchoStar
Commc’ns Corp.,
516 F.3d 1290, 1300 (Fed. Cir. 2008)
(quoting Verizon Servs. Corp. v. Vonage Holdings
Corp.,
503 F.3d 1295, 1308 (Fed. Cir. 2007)); see also
Pacing Techs., LLC v. Garmin Int’l, Inc.,
778 F.3d 1021,
1025 (Fed. Cir. 2015) (“When a patentee ‘describes the
features of the “present invention” as a whole,’ he alerts
the reader that ‘this description limits the scope of the
invention.’” (quoting Regents of Univ. of Minn. V. AGA
Med. Corp.,
717 F.3d 929, 936 (Fed. Cir. 2013))).
Moreover, none of the figures in the specification
depict an embodiment with a surface area less than a
hemisphere. We agree with the Claims Court that Fig-
ures 1, 2(a), 5(b), 6(b), 12(b), and 13(a), (b), and (c) disclose
embodiments of geodesic spheres that are greater than a
hemisphere, Claim Construction Order, 129 Fed. Cl. at
806, and do not find that any of the other figures depict a
geodesic sphere with less than 180-degree coverage.
Although Figures 7 and 8 appear to depict shapes with
less than hemispherical coverage, the written description
BONDYOPADHYAY v. UNITED STATES 13
makes clear that these figures are intended to illustrate
the “energized portion of the geodesic sphere array.” ’134
patent, col. 5, ll. 31–43.
Because Dr. Bondyopadhyay does not dispute that the
sole accused device was only capable of providing a field of
view of 120 degrees—less than the 180 degrees necessary
to provide hemispherical coverage—and because he has
provided no argument why the apparatus infringed under
the doctrine of equivalents, the Claims Court correctly
granted summary judgment of noninfringement in favor
of the government. We have considered Dr. Bondyopadh-
yay’s remaining arguments and find them unpersuasive. 4
III. CONCLUSION
For the foregoing reasons, the judgment of the Claims
Court is
AFFIRMED
COSTS
No costs.
4 On July 31, 2018, the court received a document
from Dr. Bondyopadhyay asking for his case to be re-
solved expeditiously. See Mot. to Expedite, No. 18-1674
(July 31, 2018), ECF No. 29. Nothing in this document
alters our view that the Claims Court correctly awarded
summary judgment to the government. The motion is
denied as moot.
