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Juris Zanis Pupols and v. United States Patent and Trademark

January 12, 2011

JURIS ZANIS PUPOLS AND JZP ENTERPRISE - USA, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES PATENT AND TRADEMARK OFFICE, DEFENDANT-APPELLEE, AND TOPCO SALES, INC., DEFENDANT.



Appeal from the United States District Court for the Northern District of Indiana in Case No. 09-CV-0425, Judge Philip P. Simon.

Per curiam.

NOTE: This disposition is nonprecedential.

RICHARD T. CHEN, Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Alexandria, Virginia, for the Director of the United States Patent and Trademark Office. With him on the brief were SCOTT

C. WEIDENFELLER and JOSEPH G. PICCOLO, Associate Solicitors.

Before NEWMAN, LOURIE, and MOORE, Circuit Judges.

Juris Zanis Pupols appeals from the final judgment of the United States District Court for the Northern District of Indiana dismissing his case without prejudice for failure to state a claim upon which relief could be granted. Because we agree with the district court that Pupols' complaint was deficient, we affirm.

BACKGROUND

Pupols filed U.S. Patent Application 10/336,582 (the "'582 Application") in the United States Patent and Trademark Office ("USPTO") in response to which the USPTO issued a Notice to File Corrected Application Papers on December 11, 2003. The notice indicated that Pupols had failed to pay fees in the amount of $645 required for his application. On January 12, 2005, the USPTO mailed Pupols a Notice of Abandonment of the '582 Application because he had failed to pay the required fees. The Notice of Abandonment also informed Pupols that he could petition the USPTO to revive his application based upon either unavoidable delay or unintentional delay. Pupols petitioned the PTO to revive the application on account of unavoidable delay, which the USPTO denied on December 21, 2007. The PTO considered Pupols' arguments of financial hardship and physical incapacitation, and concluded that he had not carried his burden of proof to show that the delay was indeed unavoidable. In its denial order, the USPTO noted that a person seeking revival of an application due to unintentional delay may file a petition under 37 CFR 1.137(b). Pupols did not file any other petitions in the USPTO.

On September 14, 2009, Pupols filed a pro se complaint in the District Court for the Northern District of Indiana against the USPTO, Topco Sales, Incorporated ("Topco"), "Martian Tucker Sr. formerly in the USA now in China Republic," and China. In his complaint, Pupols appeared to claim that he had invented a device that he described as "controllable reciprocating Ac/Dc powered specialty products for life enhancement," and had filed the '582 Application directed to that device. He alleged that Topco incorporated his invention into one of its devices and received a patent on it from the USPTO through "Cronyism & fraud, Theft," and due process violations by "USPTO agents."

The district court dismissed Pupols complaint without prejudice for failure to state a claim under Rule 12(b)(6). The court stated that Pupols' complaint was confusing and difficult to decipher. The court interpreted the complaint as seeking to allege a conspiracy between the USPTO, Topco, Martian Tucker, and China to defraud Pupols. The court held that USPTO was a government entity entitled to sovereign immunity against suits for money damages, and that China, as a foreign state, was entitled to immunity against suit. Moreover, the court concluded that Pupols had not alleged the elements of fraud necessary to state a claim under Rule 9(b). However, the court allowed Pupols to amend his complaint to remedy the deficiencies.

In his amendment, Pupols requested the "Supreme Court & Senate Judicial Oversight Committee to resolve any error in oversight the USPTO Agents may have had during review of their careers & Plaintiffs Patent Application." He also requested "Cease & Desist of all Reciprocating Powered Merchandise from Topco Sales Inc." Additionally, he stated a demand for 7.5 billion dollars for "Recovery of losses, business & personal." The district court found that the amendment did not correct any of the deficiencies of the original complaint and did not allege any facts to show why Pupols was entitled to any form of relief. The court therefore dismissed the case on December 23, 2009.

Pupols timely appealed the district court's decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

DISCUSSION

A motion to dismiss for failure to state a claim upon which relief can be granted is a purely procedural question, which we review under regional circuit law. C & F Packing Co., Inc. v. IBP, Inc., 224 F.3d 1296, 1306 (Fed. Cir. 2000). The Seventh Circuit reviews de novo dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), including dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii), which provides that a district court must dismiss the case of a plaintiff proceeding in forma pauperis if the action fails to state a claim on which relief may be granted. DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. ...


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