Golden v. United States ( 2020 )

Case: 19-2134 Document: 37 Page: 1 Filed: 04/10/2020
United States Court of Appeals
for the Federal Circuit
______________________
LARRY GOLDEN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2134
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00104-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: April 10, 2020
______________________
LARRY GOLDEN, Greenville, SC, pro se.
DAVID ALLEN FOLEY, JR., Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by JOSEPH H. HUNT, GARY LEE HAUSKEN.
______________________
Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
O’MALLEY, Circuit Judge.
Larry Golden (“Golden”) appeals an order of the United
States Court of Federal Claims (“Claims Court”)
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2 GOLDEN v. UNITED STATES
dismissing his claims against the United States (“govern-
ment”) pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules
of the Claims Court (“RCFC”). The Claims Court held that
Golden’s complaint alleges a duplicative claim over which
the court lacked jurisdiction, and his complaint fails to
state a claim upon which relief can be granted. Golden v.
United States, No. 19-cv-00104 (Fed. Cl. May 14, 2019),
ECF No. 12 (“Claims Court Op.”). For the reasons ex-
plained below, we affirm.
BACKGROUND
Golden, proceeding pro se, filed this suit pursuant to
28 U.S.C. § 1491(a) on January 17, 2019, seeking “reason-
able and entire compensation for the unlicensed use and
manufacture” of his “inventions described in and covered
by” various patents. Golden v. United States, No. 19-104C
(Fed. Cl. May 14, 2019), ECF No. 1; SAppx1012. 1 Relevant
to this appeal are certain other proceedings involving some
or all of the patents that were the subject of Golden’s com-
plaint in this case: Golden v. United States, No. 13-307C
(Fed. Cl. May 1, 2013) (“Lead Case”) and U.S. Dep’t of
Homeland Security v. Golden, No. IPR 2014-00714 (“the
IPR”). Resolution of this appeal does not require a detailed
recitation of the factual background of the Lead Case or the
1 Golden filed an “Informal Brief Appendix” on Sep-
tember 3, 2019, using the prefix “Appx.” Golden also filed
an additional appendix with his reply brief on November 7,
2019. This Reply Appendix also uses the prefix “Appx,” and
restarts the numbering at Appx1. The government, for its
part, filed a Supplemental Appendix, using the same
“Appx” prefix as Golden’s two appendices, but beginning
the numbering at Appx1000. We cite to the government’s
Supplemental Appendix as “SAppx,” Golden’s “Informal
Brief Appendix” as “Appx,” and Golden’s Reply Appendix
as “RAppx.”
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GOLDEN v. UNITED STATES 3
IPR. Accordingly, only the facts relevant to this appeal are
discussed below.
A. Lead Case
On May 1, 2013, Golden filed the complaint in the Lead
Case, alleging patent infringement by the government pur-
suant to 28 U.S.C. § 1498(a). The trial court allowed
Golden to amend his complaint five times, and, with each
amendment, Golden added claims of infringement of addi-
tional patents. Starting with the second amended com-
plaint, Golden also included allegations of “Government
Taking,” alleging that the government had “taken the sub-
ject matter, scope, technology rationale, devices schemat-
ics, processes, methods, procedures and systems of what is
now Golden’s patents . . . for public use without just com-
pensation.” SAppx1791–93. Golden alleged that the
Claims Court had jurisdiction over his takings claims un-
der 28 U.S.C. § 1491. SAppx1791. Noting that the takings
claims appeared to be duplicative of the patent infringe-
ment claims, the trial court initially stayed Golden’s tak-
ings claims, “pending determination of liability for the
Government’s alleged patent infringement.” SAppx1794
(citing Zoltek Corp. v. United States, 672 F.3d 1309 (Fed.
Cir. 2012) (en banc)).
On August 10, 2017, Golden filed his fifth and final
amended complaint in the Lead Case. SAppx2040. This
voluminous filing included a general “Count I,” alleging
“Fifth Amendment Takings” of nine of Golden’s patents.
SAppx2065–67. 2 It also included additional specific “Count
Is,” which recite takings allegations tailored to the use of
specific electronic devices. See, e.g., SAppx2069–70 (LG
2 Specifically, Golden alleged taking of the “subject
matter as outlined in” his U.S. Patent Nos. 7,385,497;
7,636,033; 8,106,752; 8,334,761; 8,531,280; RE43,891;
RE43,990; 9,096,189; and 9,589,439. SAppx2065.
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4 GOLDEN v. UNITED STATES
Electronics G5 Smartphone), SAppx2071–73 (LG Electron-
ics V10 Smartphone), SAppx2074–75 (Apple’s iPhone/iPad
Camera Biosensor for Facial Heart Rate Monitor). The
complaint similarly included corresponding “Count IIs”—
patent infringement claims under 28 U.S.C. § 1498 refer-
encing the same electronic devices. See, e.g., SAppx2067–
69; SAppx2070–71; SAppx2073–74; SAppx2075–76. 3
On March 29, 2018, the Claims Court issued a memo-
randum opinion and order, granting-in-part the govern-
ment’s motion for partial dismissal of the Lead Case and
denying Golden’s motion for leave to file a motion for sum-
mary judgment. Golden v. United States, 137 Fed. Cl. 155,
159 (2018) (dismissing certain patent infringement
claims). Golden appealed the partial dismissal opinion to
this court. SAppx2301. We dismissed the appeal as prem-
ature because the Claims Court had not yet issued a final
decision or judgment in the Lead Case. Order, Golden v.
United States, No. 2018-1942 (Fed. Cir. Aug. 1, 2018); Or-
der, Golden v. United States, No. 2018-1942 (Fed. Cir. May
31, 2018).
In November 2018, the Claims Court lifted the stay on
Golden’s takings claims in the Lead Case, “[t]o pursue effi-
cient resolution of all claims in th[e] case[.]” SAppx2303–4.
The court permitted the government to file a motion to dis-
miss those claims. SAppx2304. On May 8, 2019, the trial
court granted the government’s motion and dismissed
Golden’s takings claims. Golden v. United States, No.
13-307C, 2019 WL 2056662, at *3 (Fed. Cl. May 8, 2019).
3 Golden’s generic patent infringement “Count II”
referenced the same nine patents as his takings claims, as
well as his Continuation Patent Application
No. 15/530,839, which later issued as U.S. Patent
No. 10,163,287. SAppx2067–69.
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GOLDEN v. UNITED STATES 5
Certain patent infringement allegations from the Lead
Case have not yet been resolved, however. SAppx2303.
The case is stayed pending resolution of Golden’s petition
in an inter partes review proceeding affecting one of the pa-
tents at issue in the Lead Case. SAppx2339–40. The
court’s rulings on the takings claims in the Lead Case are,
accordingly, not yet ripe for appeal to this court.
B. Inter Partes Review of
U.S. Patent No. RE43,990
On April 30, 2014, the Department of Homeland Secu-
rity (“DHS”) petitioned the Patent Trial and Appeal Board
(“Board”) for inter partes review of claims 11, 74, and 81 of
Golden’s U.S. Patent No. RE43,900. The Board instituted
review on October 8, 2014. During this proceeding, Golden
filed, pro se, a Patent Owner Response and Motion to
Amend. The Board held a conference call with the parties
following this filing, and informed Golden that it was un-
clear whether his Motion to Amend was contingent on the
Board finding the challenged claims unpatentable.
SAppx2434–36. The Board informed Golden that, if his
Motion to Amend was non-contingent, he was “in essence,
abandoning the claims at issue, and saying that we should
only look at the claims as amended in the Motion to
Amend.” SAppx2436. The Board also “urge[d]” Golden “to
retain new counsel because of the possible consequences of
this proceeding, as well as its very technical nature.”
SAppx2437. In response, Golden again filed his Patent
Owner Response, as well as two separate Motions to
Amend, which the Board treated “in the collective as a sin-
gle motion to amend.” SAppx2512.
On February 3, 2015, the Board held another telecon-
ference, and confirmed with Golden that his Motion to
Amend was, indeed, non-contingent. According to the
Board, Golden confirmed “that he is abandoning the claims
on which trial was instituted.” SAppx2512. The Board is-
sued its final written decision on October 1, 2015. It
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6 GOLDEN v. UNITED STATES
granted Golden’s non-contingent request to cancel the orig-
inal claims. It also found that Golden had failed to demon-
strate by a preponderance of the evidence that his proposed
substitute claims were patentable over the prior art.
SAppx2547.
Golden did not appeal the Board’s final written deci-
sion, but is currently petitioning the Patent and Trade-
mark Office (“PTO”) (through counsel) to strike the Inter
Partes Review Certificate as an ultra vires agency action.
In that petition, Golden argues that, under the Supreme
Court’s recent decision in Return Mail, Inc. v. U.S. Postal
Serv., 139 S. Ct. 1853 (2019), a government agency may not
petition for IPR. SAppx2600–02.
C. The Present Case
Golden filed the present case in January 2019, shortly
before the Claims Court granted the government’s motion
to dismiss the takings claims in the Lead Case. In this ac-
tion, Golden again seeks compensation for the govern-
ment’s Fifth Amendment Taking of his property, i.e.,
several of his U.S. patents, which were also at issue in the
Lead Case. Golden v. United States, No. 19-104C (Fed. Cl.
May 14, 2019), ECF No. 1; SAppx1012. In this complaint,
Golden alleges takings of the subject matter of his patents
based on actions by different entities, including the Board,
the Department of Justice, DHS, the Claims Court, and our
court. SAppx1011–12. The complaint alleges the takings
occurred by virtue of: (1) the government’s use, manufac-
ture, development, and disclosure of the subject matter
“outlined” in the claims and specifications of Golden’s pa-
tents; (2) the cancellation of certain patent claims during
the IPR initiated by the government; and, (3) certain ac-
tions by the Claims Court and the Federal Circuit in the
Lead Case. On January 29, 2019, the trial court deter-
mined that Golden’s complaint raises identical questions of
law and fact as the Lead Case and consolidated the cases.
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GOLDEN v. UNITED STATES 7
On May 14, 2019, upon the government’s motion pur-
suant to RCFC 12(b)(1) and 12(b)(6), the Claims Court dis-
missed Golden’s complaint in the present case as largely
duplicative of the takings claims in the Lead Case, which
the court had recently dismissed. Claims Court Op. at 1.
The court held that, even if the complaint was not duplica-
tive of the Lead Case, the Claims Court did not have juris-
diction over the takings claims because Golden cannot
label his patent infringement claim as a “taking” in order
to proceed under the court’s Tucker Act jurisdiction. Ac-
cording to the trial court, patent infringement claims
against the government are to be pursued exclusively un-
der § 1498, and “‘patent rights are not cognizable property
interests for Takings Clause purposes.’” Id. at 3–4 (citing
Zoltek v. United States, 442 F.3d 1345 (Fed. Cir. 2006)
(“Zoltek I”), vacated on other grounds on reh’g en banc,
672 F.3d 1309 (Fed. Cir. 2012) (“Zoltek II”) and quoting
Christy, Inc. v. United States, 141 Fed. Cl. 641, 657–60
(2019)).
As to Golden’s IPR-based takings claims, the trial court
found that patent rights are not private property for pur-
poses of a Fifth Amendment takings claim. The court then
concluded, “setting aside whether an action by the Board
could ever constitute a government taking,” the cancella-
tion of claims in the IPR was the result of Golden’s volun-
tary amendment of his claims. Id. at 4. Finally, as to
Golden’s grievances against the Claims Court and this
court, the trial court explained that the courts adjudicate
patent rights, and, “in any event, as Mr. Golden himself
notes, both courts have allowed his patent claims to con-
tinue in the [Lead Case].” Id. Golden timely appeals. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
Whether the Claims Court properly granted the gov-
ernment’s motion to dismiss is a question of law. Rocovich
v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). This
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8 GOLDEN v. UNITED STATES
court reviews a question of law de novo and reverses the
Claims Court’s legal conclusion only if it is incorrect as a
matter of law. See Placeway Constr. Corp. v. United States,
920 F.2d 903, 906 (Fed. Cir. 1990).
On appeal, Golden argues that the trial court improp-
erly dismissed his takings claims based on: (1) the govern-
ment’s infringement of his patents; (2) the institution of the
IPR; and (3) the Claims Court’s dismissal of his causes of
action relating to patent claims that were “unjustly can-
celled in the IPR.” Appellant’s Br. 5, 13. He also argues
that there were “several breaches of implied-in-fact con-
tracts” by the government. Id. at 5. We address each ar-
gument in turn.
A.
We first consider the dismissal of Golden’s patent in-
fringement-based takings claims. The Claims Court held
that it did not have jurisdiction over these claims pursuant
to 28 U.S.C. § 1491, because patent infringement claims
against the government are to be pursued exclusively un-
der 28 U.S.C. § 1498. Claims Court Op. at 3–4 (citing
Zoltek I, 442 F.3d at 1350–53). We agree.
The Claims Court has limited jurisdiction to entertain
suits against the United States. The Tucker Act is the
principal statute governing the jurisdiction of the Claims
Court. It waives sovereign immunity for claims against the
United States that are founded upon the Constitution, a
federal statute or regulation, or an express or implied con-
tract with the United States. 28 U.S.C. § 1491. Section
1491 carves out an important exception: it does not waive
sovereign immunity for claims sounding in tort. Id. As
relevant to this case, another statute, 28 U.S.C. § 1498(a)
permits suits against the United States for its unauthor-
ized use of a patented invention. Under this statute, a pa-
tent owner may “recover[] . . . his reasonable and entire
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GOLDEN v. UNITED STATES 9
compensation for such use and manufacture.” 28 U.S.C.
§ 1498(a).
In support of its conclusion that § 1498 provides the
sole avenue for pursuing a claim of patent infringement
against the United States, the Claims Court relied on our
decision in Zoltek I. There, we affirmed the Claims Court’s
decision that patent owner Zoltek’s § 1498(a) infringement
claims against the government were barred because every
step of the claimed method was not performed in the
United States. And, relying on the Supreme Court’s deci-
sion in Schillinger v. United States, 155 U.S. 163 (1894), we
held that Zoltek was not permitted to proceed under the
Tucker Act by alleging that the infringement was a taking.
Zoltek I, 442 F.3d at 1350. As the subsequent history of the
Zoltek case shows, our decision in Zoltek I does not control
the jurisdictional analysis here. 4 We agree, however, with
the conclusion in Zoltek I that 28 U.S.C. § 1498 provides
the only avenue for a patent owner to bring an action
against the government for patent infringement.
The Takings Clause of the Fifth Amendment states
that private property shall not “be taken for public use,
4 There, on remand, the Claims Court granted the
patent owner’s motion to amend its complaint and to trans-
fer the case, and certified that decision to us for an inter-
locutory appeal. We then voted en banc to vacate the
Zoltek I holding that Zoltek’s § 1498(a) infringement claims
were barred. Zoltek II, 672 F.3d at 1326–27. And, we held
that, “[s]ince the Government’s potential liability under
§ 1498(a) is established, we need not and do not reach the
issue of the Government’s possible liability under the Con-
stitution for a taking. The trial court’s determinations on
that issue are vacated.” Id. at 1327. The Zoltek I takings
analysis, is therefore, persuasive authority, but not binding
on us.
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10 GOLDEN v. UNITED STATES
without just compensation.” U.S. Const. amend. V. But a
cause of action under the Fifth Amendment is unavailable
to patent owners alleging infringement by the government.
Schillinger, 155 U.S. at 168–69. In Schillinger, the Su-
preme Court held that a patentee could not sue the govern-
ment for patent infringement as a Fifth Amendment
taking. Id. The Court explained that, under the Tucker
Act, Congress waived its sovereign immunity as to certain
types of claims, but that waiver does not extend to “claims
founded upon torts.” Id. at 168. According to the Court, a
patent infringement action “is one sounding in tort[,]” and,
just as Congress could not have intended every wrongful
arrest or seizure of property to expose it to damages in the
Court of Claims under the Due Process Clause, the wrong-
ful appropriation of a patent license cannot expose the gov-
ernment to liability under the Fifth Amendment’s Takings
Clause. Id. at 168–169. Thus, under Schillinger, prior to
the Patent Act of 1910 (later codified as amended at 28
U.S.C. § 1498), the Claims Court lacked jurisdiction over
patent infringement actions against the government. As
we recognized in Zoltek I, Schillinger remains the law.
442 F.3d at 1350.
Subsequent legislation confirms that a patent owner
may not pursue an infringement action as a taking under
the Fifth Amendment. Following Schillinger, Congress en-
acted the Patent Act of 1910, which “augmented the Court
of Claims’ Tucker Act jurisdiction by providing jurisdiction
over the tort of patent infringement.” Id. at 1351. We ex-
plained in Zoltek I that 28 U.S.C. § 1498 “‘add[ed] the right
to sue the United States in the court of claims’ for patent
infringement.” Id. (quoting Crozier v. Fried. Krupp Ak-
tiengesellschaft, 224 U.S. 290, 304 (1912)) (alterations in
original). Before the 1910 Act, no patent infringement ac-
tion could be brought against the government “unless in
the Court of Claims under a contract or implied contract
theory.” Id. The Act “‘was intended alone to provide for
the discrepancy resulting from the right in one case to sue
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GOLDEN v. UNITED STATES 11
on the implied contract and the non-existence of a right to
sue’ for infringement.” Id. (quoting William Cramp & Sons
Ship & Engine Bldg. Co. v. Int’l Curtis Marine Turbine Co.,
246 U.S. 28, 41 (1918)). If the right to challenge the gov-
ernment’s infringement already existed under the Fifth
Amendment, there would be no need to expressly add to the
Claims Court’s jurisdiction through the Patent Act. See id.Indeed, as we recognized in Zoltek I, holding to the contrary
would “read an entire statute, § 1498, out of existence.”
Id. at 1352.
Schillinger mandates the conclusion reached by the
Zoltek I court, which we expressly adopt today: the Claims
Court does not have jurisdiction to hear takings claims
based on alleged patent infringement by the government.
Those claims sound in tort and are to be pursued exclu-
sively under 28 U.S.C. § 1498. Thus, the Claims Court was
without jurisdiction to hear Golden’s patent infringement-
based takings claims, and it properly dismissed these
claims. 5
B.
We next turn to Golden’s IPR-based takings claims.
We first address whether the Claims Court had jurisdiction
to hear these claims.
The government alleges that, “upon further considera-
tion,” it has identified a jurisdictional problem that was not
recognized below. Appellee’s Br. 40. The government ar-
gues that the American Invents Act (“AIA”)’s creation of
5 Because we find the Claims Court did not have ju-
risdiction to hear Golden’s patent infringement-based tak-
ings claims, we need not address the court’s alternative
holding that these claims are duplicative of the claims in
the Lead Case.
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12 GOLDEN v. UNITED STATES
inter partes review by the Board, followed by judicial re-
view before this court, creates a “‘self-executing remedial
scheme’ that ‘supersedes the gap-filling role of the Tucker
Act.’” Id. at 41 (quoting United States v. Bormes, 568 U.S.
6, 13 (2012)). According to the government, the AIA statu-
tory scheme displaces Tucker Act jurisdiction because
there is no procedural impediment to presentation of a tak-
ings claim to the agency and because the remedial scheme
provides for judicial review of constitutional challenges to
the agency’s action. Id. at 43–49.
The government’s argument is without merit. In
Bormes, the Supreme Court explained that Tucker Act ju-
risdiction is displaced “when a law assertedly imposing
monetary liability on the United States contains its own ju-
dicial remedies.” 568 U.S. at 12 (emphasis added). More
recently, the Court explained that, “[t]o determine whether
a statutory scheme displaces Tucker Act jurisdiction, a
court must ‘examin[e] the purpose of the [statute], the en-
tirety of its text, and the structure of review that it estab-
lishes.’” Horne v. Dep’t of Agric., 569 U.S. 513, 526–27
(2013) (quoting United States v. Fausto, 484 U.S. 439, 444
(1988)). Thus, when there is a precisely defined statutory
framework for a claim that could be brought against the
United States, the Tucker Act gives way to the more spe-
cific statutory scheme.
Regardless of the structure of review it establishes, the
AIA is not a statute that provides for claims against the
United States. Looking to the purpose and text of the stat-
ute, the AIA represents an overhaul of the U.S. patent sys-
tem from a first-to-invent to a first-to-file regime.
35 U.S.C. § 100. It also establishes post-grant review of
patents. 35 U.S.C. § 321. The government is correct that,
under the AIA, parties may raise constitutional challenges
in our court on appeal from Board decisions. But this re-
medial scheme does not convert the AIA into a statutory
framework for claims against the United States. The AIA
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GOLDEN v. UNITED STATES 13
is by no means “a law assertedly imposing monetary liabil-
ity on the United States.” Borne, 568 U.S. at 12. Accord-
ingly, we reject the government’s argument that the AIA
displaced Tucker Act jurisdiction over Golden’s IPR-based
takings claims. 6
As to the merits of Golden’s IPR-based takings claims,
on appeal, Golden argues, inter alia, that the government’s
actions (including in the IPR) resulted in a reduction of
value of his property, destroyed his competitive edge, and
interfered with his “reasonable investment-backed expec-
tations.” Appellant’s Br. 7–8. We rejected similar argu-
ments in Celgene Corp. v. Peter, 931 F.3d 1342 (Fed. Cir.
2019). There, we explained that inter partes review pro-
ceedings, like patent validity challenges in the district
court, “serve the purpose of correcting prior agency error of
issuing patents that should not have issued in the first
place[.]” Id. at 1361. Additionally, we noted that “[p]atent
owners have always had the expectation that the validity
of patents could be challenged in district court. For forty
years, [they] have also had the expectation that the PTO
could reconsider the validity of issued patents on particular
grounds, applying a preponderance of the evidence stand-
ard.” Id. at 1362–63. Accordingly, we held that retroactive
application of inter partes review proceedings to pre-AIA
patents is not an unconstitutional taking under the Fifth
Amendment. Id. at 1362.
Although Golden does not challenge retroactive appli-
cation of inter partes review in this case, Celgene controls
the outcome here. Golden, as a patent owner, has “always
had the expectation that the validity of patents could be
6 This does not, of course, alter our conclusion that
an action for patent infringement sounds in tort and the
only avenue to sue the United States government for unau-
thorized licensing of patent rights is a suit pursuant to
28 U.S.C. § 1498. See supra, Section A.
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14 GOLDEN v. UNITED STATES
challenged in district court” or before the PTO. Id. at
1362–63. Under Celgene, subjecting patents to inter partes
review proceedings is not an unconstitutional taking under
the Fifth Amendment. 7 Id. at 1362.
We are mindful, of course, of the unique circumstances
of the IPR in Golden’s case. This IPR was initiated by DHS,
a federal agency. Following the cancellation of certain
claims of his RE43,990 patent in the IPR, the Supreme
Court made clear in Return Mail that “a federal agency is
not a ‘person’ who may petition for post-issuance review
under the AIA.” 139 S. Ct. at 1867. Golden may ar-
gue that, in view of Return Mail, the cancellation of the
7 Although it does not expressly address the issue
here, the government has “not dispute[d] that a valid pa-
tent is private property for the purposes of the Takings
Clause.” Celgene, 931 F.3d at 1358. And, as we noted in
Celgene, the Supreme Court’s recent decision in Oil States
Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S.
Ct. 1365 (2018), is not to the contrary. In Oil States, the
Court explained that “the decision to grant a patent is a
matter involving public rights—specifically the grant of a
public franchise.” 138 S. Ct. at 1373 (emphasis in original).
At the same time, it “emphasize[d] the narrowness of [its]
holding” explaining that it was addressing “only the precise
constitutional challenges” raised in that case. Id. at 1379.
The Court admonished that its “decision should not be mis-
construed as suggesting that patents are not property for
purposes of the Due Process Clause or the Takings Clause.”
Id. Despite the Claims Court’s express finding on the sta-
tus of patent rights under the Fifth Amendment, we de-
cline to address that question here, however, because, even
if Golden’s patents are his private property for Takings
Clause purposes, under Celgene, cancellation of patent
claims in inter partes review cannot be a taking under the
Fifth Amendment.
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GOLDEN v. UNITED STATES 15
patent claims in an inter partes review initiated by the gov-
ernment could be considered an unconstitutional taking
under the Fifth Amendment. We need not decide whether
that is the case, however, for two reasons. First, Golden
did not appeal the Board’s final written decision in the IPR
to this court, and the decision became final before the Re-
turn Mail decision was issued. Second, Golden voluntarily
filed a non-contingent motion to amend the claims on
which the IPR was instituted. His substitute claims were
then found unpatentable. The claims at issue were there-
fore cancelled as result of Golden’s own voluntary actions.
In these circumstances, cancellation of the claims in the
government-initiated inter partes review cannot be charge-
able to the government under any legal theory.
C.
Finally, we address Golden’s arguments regarding the
alleged takings by the Claims Court and the breach of “im-
plied-in-fact contracts” by the government. Appellant’s Br.
5, 13. As the Claims Court explained, the actions of the
Federal Circuit and the Claims Court cannot be an uncon-
stitutional taking, as both courts “adjudicate rights in pa-
tents.” Claims Court Op. at 4. As to the breach of “implied-
in-fact contracts,” it appears these arguments are made ei-
ther in support of Golden’s takings claims, discussed above,
or raised for the first time on appeal. Accordingly, these
arguments are either unpersuasive or waived.
CONCLUSION
For the foregoing reasons, we affirm the Claims Court’s
decision. We have considered the parties’ remaining argu-
ments and find them unpersuasive.
AFFIRMED