Samy Gharb v. United States ( 2013 )

In the United States Court of Federal Claims
No. 13-089C
(Filed December 6, 2013)
NOT FOR PUBLICATION
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SAMY GHARB, *
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Plaintiff, *
v. *
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THE UNITED STATES, *
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Defendant. *
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MEMORANDUM OPINION AND ORDER
Plaintiff, representing himself, has brought an action seeking damages for
the alleged patent infringements of a government contractor. The government has
moved to dismiss the case under Rules 12(b)(1), 12(b)(6), and 41(b) of the Rules of
the United States Court of Federal Claims (“RCFC”). For the reasons discussed
below, the motion is GRANTED due to a lack of subject-matter jurisdiction and to
plaintiff’s failure to state a claim upon which relief can be granted.
I. BACKGROUND
This is the final remaining case of five that were filed in our court by Samy
Gharb, a pro se litigant apparently residing in Zurich, Switzerland. All concern the
purported infringement of United States Patent No. 6,552,654 (“the ’654 patent”) by
private companies holding federal government contracts. The other four have been
dismissed under RCFC 12(b)(6) for failure to state a claim. See Gharb v. United
States, 112 Fed. Cl. 94, 97-98 (2013) (concerning products sold by Mitsubishi
Electric Corp.); Gharb v. United States, No. 12-911C, 2013 WL 4828589, at *5-7
(Fed. Cl. Sept. 9, 2013) (concerning products sold by Unitronics (1989) (R”G) Ltd.);
Gharb v. United States, No. 12-910C, 2013 WL 4406910, at *2-3 (Fed. Cl. Aug. 15,
2013) (same); Gharb v. United States, No. 13-100C, 2013 U.S. Claims LEXIS 736, at
*8-11 (June 25, 2013) (concerning products sold by Rockwell Automation). This case
shares many of the hallmarks of the other, dismissed actions. The complaint is an
odd collage of website printouts, screen captures and other photographs, and
excerpts from documents, interspersed with text concerning the history of two
French companies --- Schneider Electric SA (“Schneider Electric”) and Crouzet
Automatismes SAS (“Crouzet”). In addition to the United States (and four of its
military services), the complaint names several dozen parties as purported
defendants --- including the two aforementioned French companies and several of
their operations, more than twenty other businesses, the Republic of France, the
French aerospace industries association, the district judge who dismissed one of
plaintiff’s previous cases, and several other individuals. See Compl. at 1-3. Few of
these other purported defendants are mentioned beyond the caption, and in any
event --- as we discussed in the companion case, see Gharb, 2013 WL 4828589, at *2,
*5 --- the United States is the only properly-named defendant in complaints filed in
our court. See RCFC 10(a).
In his complaint, Mr. Gharb seeks two billion dollars in damages from the
United States for alleged infringements of the ’654 patent, under 35 U.S.C. § 284
and 28 U.S.C. § 1498(a). Compl. at 36. 1 This patent, called “Security System with a
Mobile Telephone,” see Compl. at 28, Ex. 1 at 1, was issued to Mr. Gharb on April
22, 2003, and “relates to a security system with a mobile telephone for monitoring
objects, in particular vehicles and security cases, and a method for operating such a
system,” Compl. Ex. 1 at 10. The invention’s described objective was “to propose a
security system in which the alarm is reported via a mobile telephone connection.”
Id. As the Federal Circuit explained in another case involving Mr. Gharb and his
invention, the limitations of the broadest claim of the ’654 patent included the use
of “a digital recording device having at least one emergency message,” five
Programmable Logic Controllers (PLCs), and “a data set for transmission to the
mobile telephone including alarm information.” Unitronics (1989) (R”G) Ltd. v.
Gharb, 318 F. App’x 902, 904-05 (Fed. Cir. 2008) (quoting the ’654 patent at col. 5 ll.
25-51); see Compl. Ex. 1 at 12.
Although the complaint is confusing and meandering, the Court discerns that
Mr. Gharb is of the belief that Schneider Electric is a government contractor which
sells products infringing upon his patent; and that Crouzet, apparently acquired by
Schneider Electric in 2000, see Compl. at 22, does the same. His reasoning seems to
be that in the years prior to the filing of his application for the ’654 patent, no
patents or trademarks of either company combined the use of PLCs and the Global
1
Mister Gharb also asks that the Republic of France, Schneider Electric and
Crouzet participate in the payment of his alleged damages. See Compl. at 36.
These other parties neither appear nor are regarded in this matter. Our court does
not have jurisdiction over claims between private parties, see Ambase Corp. v.
United States, 61 Fed. Cl. 794, 796 (2004), or claims against foreign governments,
see Gharb, 2013 WL 4828589, at *5.
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System for Mobile Communications (“GSM”), see Compl. at 5, 9-21, Ex. 2 at 4 & Ex.
3, but that products of both since that time have contained PLCs communicating
over the GSM, see id. at 22-27 & Exs. 4-6. 2 These allegations are in the form of
excerpts from patents and printouts from the United States Patent and Trademark
Office’s (“PTO”) Trademark Electronic Search System (“TESS”), with occasional
annotations by plaintiff, see Compl. at 10-20; pictures and product descriptions, id.
at 22-24, 26-27; and lists of products and application areas, id. at 21, 31. The
complaint contains very little about any contracts with the federal government. On
one page there is what appears to be text from a Schneider Electric press release
dated October 30, 2008, concerning the award of an indefinite delivery/indefinite
quantity (“ID/IQ”) multiple award contract to meter the use of energy by the U.S.
Navy and Marine Corps. Id. at 6. And one exhibit is a page from Schneider Electric
promotional material that references two energy savings performance contracts
projects (with the U.S. Coast Guard and the General Services Administration),
notes the offering of “creative financing structures, advanced metering
infrastructure, smart grid, data center efficiency, and smart building solutions,” and
identifies eleven other departments or entities as among its “federal client base.”
Compl. Ex. 7.
The government has moved to dismiss this case on three bases. First, it
argues that Mr. Gharb’s filing fails to comply with RCFC 8(a), which requires that a
pleading provide a “short and plain statement” of both the grounds for the court’s
jurisdiction and of the claim, and that dismissal under RCFC 41(b) is thus
warranted for failure to comply with the court’s rules. Def.’s Mot. to Dismiss
(“Def.’s Mot.”) at 4-5. Second, the government contends that the matter should be
dismissed for lack of subject-matter jurisdiction under RCFC 12(b)(1), as any
damages accruing earlier than February 1, 2007 would be time-barred under the six
year limitations period of 28 U.S.C. § 2501, and the complaint fails to allege any
infringing sales from that date through the date that plaintiff’s patent expired. Id.
at 5-6. 3 Finally, defendant argues that plaintiff fails to state a claim against the
2 Another purported defendant, the Swedish business Westermo, is similarly
alleged not to have had trademarks involving PLCs prior to the filing of plaintiff’s
patent application. See Compl. at 33-35. Plaintiff appears to have included that
party due to its partnership in a program with Schneider Electric. See id. at 32.
3 The government cites one of the district court opinions in the Unitronics case
which determined, “[b]ased on the database records” of the PTO, that the ’654
patent “expired on April 22, 2007, due to Mr. Gharb’s non-payment of the
maintenance fees required under 37 C.F.R. § 1.362.” Def.’s Mot. at 6 (quoting
Unitronics (1989) (R”G) Ltd. v. Gharb, 532 F. Supp. 2d 25, 26 (D.D.C. 2008)). Using
the PTO’s Patent Application Information Retrieval system, under the “Transaction
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United States and should have his case dismissed under RCFC 12(b)(6). It contends
that plaintiff’s allegations are “fatally bare and conclusory” and that he “fails to
allege any facts that would entitle him” to relief. Id. at 7. The government
specifically notes the Schneider Electric press release regarding the ID/IQ contract
and states that plaintiff “does not allege facts to show that Schneider Electric
provided any allegedly infringing device to the government under that contract.”
Id. at 8. And the government argues that to the extent plaintiff is merely repeating
allegations rejected in prior litigation against Schneider Electric, claim preclusion
(or res judicata) bars them. Id. (citing Federated Dep’t Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981)). Incidentally, a copy of the order dismissing that earlier case,
Gharb v. Schneider Electric SA, No. 10-C-7637, 2011 WL 6156746 (N.D. Ill. Dec. 12,
2011), is attached as Exhibit 8 to the complaint, and a portion of the decision is also
quoted in the body of the complaint, see Compl. at 3-4.
Plaintiff’s response was reminiscent of his complaint, exhibiting an unusual
format and presentation. A large chunk of the response concerns Mr. Gharb’s belief
that the Israeli company Unitronics (1989) (R”G) Ltd. (“Unitronics”) infringed the
’654 patent, see Resp. to Def.’s Mot. to Dismiss (“Pl.’s Resp.”) at 2-9 & Ex. 6, 4 which
is unusual since that company was not even listed among the purported defendants,
see Compl. at 1-3. 5 As near as the Court can tell, this discussion is plaintiff’s
attempt to avoid any preclusive effect from the district court’s dismissal of his case
against Schneider Electric, which relied in part on the Federal Circuit’s decision in
the Unitronics lawsuit. See Schneider Electric SA, 2011 WL 6156746, at *2-3 (citing
Unitronics, 318 F. App’x 902). Plaintiff also seems to believe that frequent
invocations of defense counsel’s name, as well as the use of a picture of and
History” tab, the patent seems to have expired on May 23, 2007. This discrepancy
is immaterial to the outcome of the government’s motion.
4 The response has two exhibits, the second of which is identified as “Exhibit 6,”
and consists of excerpts from a user’s manual for a Unitronics product.
5 Although the complaint contains no allegations concerning Unitronics, the prayer
for relief includes a request for a judgment that “[d]efendant Unitronics and all
these federal defendants wilfully infringed” Mr. Gharb’s patent. Compl. at 36. This
appears to be the erroneous result of plaintiff’s haphazard copying-and-pasting of
portions of the complaint from another case, including the identical typographical
errors. See Complaint at 43-44, Gharb v. United States, No. 12-911C (Fed. Cl. Dec.
26, 2012). Exhibit 9 to the complaint in the case under consideration inexplicably
contains a copy of the user’s manual for a Unitronics product and TESS records for
two Unitronics trademarks.
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biographical information for another lawyer who shares this name, see Pl.’s Resp. at
10-12, is an effective method of rebutting the government’s arguments. See id. at 2,
7-13, 16-18, 20, 24, 28. 6
Concerning the infringement claims that plaintiff is attempting to assert, he
states that “[t]he products of Schneider Electric for PLC—GSM mobile phone are
now sold everywhere in the United States in companies, in machines, in factories –
in [c]ars, marine [sic], trains.” Id. at 2. He provides the specific examples of their
use in “[o]il platforms, water stations, [g]as stations, [n]uclear power stations.” Id.
He reiterates his theory that since no alleged patents, trademarks or products of
Schneider Electric or Crouzet employed both PLCs and the GSM prior to the
publication of his patent application, these companies must have infringed the ’654
patent. Id. at 13-20, 24, 30. 7 As support, plaintiff assembles excerpts from various
documents such as TESS records, trademark applications, and product user’s
manuals. See Pl.’s Resp. at 14-20 & Ex. 1. And he repeats his list of Schneider
Electric and Crouzet products that combine PLCs and use of the GSM. Id. at 24.
Little of plaintiff’s response is devoted to the critical question of the existence
of federal government contracts to purchase any products which allegedly infringed
upon the ’654 patent. Plaintiff includes a reproduction of the Schneider Electric
press release, quoted in the complaint, Compl. at 6, concerning the October 2008
award of an ID/IQ contract with the U.S. Navy and Marine Corps. Pl.’s Resp. at 29.
Another reproduction is of a Department of Homeland Security advisory regarding
Schneider Electric software. Id. at 23. Neither mention any of the products which
allegedly infringe upon the ’654 patent. And a page and one-half of the response
contains cryptic combinations of strings of phrases relating to Schneider Electric
and government contracts --- apparently the results of internet searches (as
excerpts from web addresses are interspersed among these phrases). See id. at 20-
22. The only passage which involves a time period prior to the expiration of the ’654
patent concerns a supposed Federal Supply Schedule (“FSS”) listing that included
PLCs under a contract running from March 1, 1997 through February 29, 2012. Id.
6 Plaintiff also curiously includes photographs of judges and a lawyer who
participated in his Unitronics litigation, and of the district court judge from his
lawsuit against Schneider Electric (who was improperly identified as a defendant in
this matter, see Compl. at 3). Pl.’s Resp. at 2-3, 13.
7 The similar argument is made that Unitronics as of 1999 had PLC trademarks
and a PLC product that did not communicate using the GSM, and that these facts
were hidden from the judges deciding the Unitronics matter. See Pl.’s Resp. at 3-6,
24, 30.
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at 21. At the end of his response, plaintiff clarifies that he seeks damages from just
Schneider Electric and the United States, and that the $2 billion requested covers
infringement “during the period from 2001 to 2007.” Id at 31. 8
The government’s reply reiterates the points made in its motion. See Def.’s
Reply at 1-4. Regarding that portion of plaintiff’s response which the government
aptly describes as a “series of vague press release excerpts that purportedly show
that Schneider Electric and the government were parties to contracts,” defendant
argues that Mr. Gharb has failed to show that the “asserted contracts relate to any
allegedly infringing devices” and “that any actionable transactions occurred during
the relevant jurisdictional time period.” Id. at 2.
Following receipt of the reply paper, Mr. Gharb submitted a second response,
which the Court, in light of plaintiff’s pro se status, allowed to be filed as a sur-
reply. See Order (June 5, 2013); ECF No. 9 (“Sur-reply”). His sur-reply is in the
same vein as his other papers, repeating the same contentions in the same odd
style. To support his claims, he includes material apparently copied and pasted
from the internet concerning two General Services Administration (“GSA”) FSS
contracts. See Sur-reply at 4-5. One contract, with an apparent affiliate of
Schneider Electric, concerns law enforcement and security and purportedly runs
through September 14, 2015. Id. No specific products are identified with this
listing. Id. The other contract, with an unrelated party, seemingly includes a
listing for a Zelio Logic GSM mobile phone by Schneider Electric, id. at 5, which
might be one of the devices about which plaintiff complains. See Compl. at 21. The
contract is represented as running through November 14, 2016. Sur-reply at 5.
Plaintiff in his sur-reply now describes the time period for which damages are
sought as running “from 2000 to 2007.” Id. at 7.
II. DISCUSSION
To the extent that plaintiff seeks damages for any infringements of the ’654
patent occurring prior to February 1, 2007, it is beyond dispute that such claims are
not within our subject-matter jurisdiction. Under the applicable statute of
limitations, “[e]very claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501 (2006). The expiration of this particular
8 As the Court noted earlier, Schneider Electric is not a proper party to this
proceeding. See supra n.1. Plaintiff dropped the request for judgment against
Unitronics, see Pl.’s Resp. at 31, confirming that this was included erroneously in
the complaint.
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statute of limitations period presents a jurisdictional issue. See John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008). Plaintiff filed this lawsuit
on February 1, 2013, and thus any claims accruing more than six years earlier ---
that is, before February 1, 2007 --- are beyond our jurisdiction. Insofar as the
complaint seeks damages for infringements occurring before February 1, 2007, the
government’s motion to dismiss these claims under RCFC 12(b)(1) is GRANTED.
Claims accruing on or after February 1, 2007, however, run up against
another limit. As the government notes, see Def.’s Mot. at 6, and plaintiff does not
seem to dispute, the ’654 patent expired in the first half of 2007 due to Mr. Gharb’s
failure to pay required maintenance fees. The Court takes judicial notice of the
record publicly available from the PTO’s Patent Application Information Retrieval
system, showing that plaintiff’s patent expired on May 23, 2007 due to non-
payment of maintenance fees under 37 C.F.R. § 1.362. 9 Plaintiff appears to concede
this point, as he does not seek damages accruing after 2007. See Pl.’s Resp. at 31;
Sur-reply at 7. Thus, to state a claim upon which relief can be granted, plaintiff
must allege sufficient facts to plausibly suggest that the federal government
purchased infringing products within the window beginning February 1, 2007, and
ending May 23, 2007.
The court considers motions for failure to state a claim upon which relief can
be granted under Rule 12(b)(6). RCFC 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). When determining whether to grant a Rule
12(b)(6) motion, the court “must accept as true all the factual allegations in the
complaint” and make “all reasonable inferences in favor of the non-movant.”
Sommers Oil. Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001).
Nonetheless, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
9 The Court may take judicial notice of such public records when considering a
motion to dismiss. See Bander v. United States, 161 Ct. Cl. 475, 478-79 (1963); see
also Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948, 954 n.27 (Fed. Cir. 1993)
(taking judicial notice of public patent records). Plaintiff raised no objection to the
government’s reliance on the district court’s determination that the ’654 patent
expired one month earlier. See Def.’s Mot. at 6 (citing Unitronics, 532 F. Supp. 2d
at 26); Pl.’s Resp. at 1-18, 20-22, 24-31.
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678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Although this Court accords a pro se plaintiff leniency in presenting his case, the
plaintiff's pro se status does not render him immune from the requirement that he
plead facts upon which a valid claim can rest. Paalan v. United States, 57 Fed. Cl.
15, 16 (2003); see also Hains v. Kerner, 404 U.S. 519, 520 (1972).
Even taking into account the attempted elaborations in his two subsequent
documents, plaintiff’s complaint falls far short of meeting the RCFC 12(b)(6)
standard. In the first place, he fails to identify any purchase by the federal
government of any product during the relevant time period. At best, plaintiff
identified one Schneider Electric GSA FSS contract in force during this time period.
See Pl.’s Resp. at 21. But this contract is alleged to have begun March 1, 1997, id.
which was several years before Mr. Gharb applied for the ’654 patent application,
see Compl., Ex. 1 at 1, and thus could not have included any devices which infringed
upon that patent. Moreover, such contracts merely serve as catalog listings from
which agencies may purchase supplies, see Sharp Elecs. Corp. v. McHugh, 707 F.3d
1367, 1369 (Fed. Cir. 2013), and their mere existence cannot be taken to mean that
a purchase of a listed item occurred on any given day. In any event, plaintiff does
not even allege that this particular contract concerned one of the purportedly
infringing devices, but instead states that it included PLCs. See Pl.’s Resp. at 21.
Mister Gharb’s difficulties do not end there, however, as his allegations that
Schneider Electric products infringed the ’654 patent are the sort of “mere
conclusory statements” that the Supreme Court found implausible in Iqbal and
Twombly. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Plaintiff appears
to persist in his belief that the ’654 patent gave him the exclusive right to all
products which use PLCs communicating over GSM. See Compl. at 5, 9-27, 36, Exs.
2 & 4-6. The Federal Circuit has found to the contrary. See Unitronics, 318 F.
App’x at 904-05. Plaintiff has failed to allege that any Schneider Electric (or, for
that matter, Crouzet) product contains each limitation of his broadest claim. For
the foregoing reasons, to the extent plaintiff seeks damages for any alleged
infringements occurring on or after February 1, 2007, the government’s motion to
dismiss these claims under RCFC 12(b)(6) is GRANTED. 10
10 Although plaintiff’s claims are neither short nor plain, the Court does not find
dismissal under RCFC 8(a) and 41(b) appropriate, as the basis of his claims can be
discerned and it is clear that he fails to state a claim upon which relief can be
granted. See Gharb, 2013 WL 4828589, at *5.
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III. CONCLUSION
For the reasons stated above, to the extent plaintiff seeks damages for claims
accruing prior to February 1, 2007, defendant’s motion to dismiss these claims
under RCFRC 12(b)(1) is GRANTED; and to the extent damages are sought for
claims accruing on or after that date, defendant’s motion to dismiss those claims
under RCFC 12(b)(6) is GRANTED. The case is dismissed, and the Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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