Sridat S.R.S. Chinsammy v. United States , 417 F. App'x 950 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SRIDAT S.R.S. CHINSAMMY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5032
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-310, Judge Marian Blank Horn.
__________________________
Decided: April 7, 2011
__________________________
SRIDAT S.R.S. CHINSAMMY, Schenectady, New York,
pro se.
JOHN FARGO, Director, Intellectual Property Staff,
Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC. With
him on the brief was TONY WEST, Assistant Attorney
General.
__________________________
CHINSAMMY v. US 2
Before GAJARSA, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Sridat S.R.S. Chinsammy appeals from a final judg-
ment of the United States Court of Federal Claims dis-
missing his complaint for lack of jurisdiction. See
Chinsammy v. United States, 95 Fed. Cl. 21 (Fed. Cl.
2010). We affirm.
BACKGROUND
Chinsammy filed a provisional patent application
with the United States Patent and Trademark Office
(“PTO”) on November 1, 2006. On June 14, 2007, he filed
U.S. Patent Application No. 11/818,453 (the “’453 Applica-
tion”), entitled “Molecular Energy Extraction Chambers.”
Four months later, Chinsammy filed the current version
of the abstract, specification, claims, and drawings for the
’453 Application. His application was published on July
3, 2008.
On January 27, 2010, a PTO examiner entered a non-
final rejection of both claims in the ’453 Application. The
claims were rejected on multiple grounds, including
obviousness, see 35 U.S.C. § 103, and lack of enablement,
see 35 U.S.C. § 112. Subsequently, on September 7,
2010, the PTO issued a Notice of Abandonment, explain-
ing that Chinsammy had failed to respond to the first
office action rejecting all claims of his patent application.
Chinsammy thereafter filed suit in the Court of Fed-
eral Claims, seeking $200 trillion in damages for alleged
infringement of his patent rights by the United States.
The court, however, dismissed his complaint, concluding
that it had no jurisdiction to consider Chinsammy’s
3 CHINSAMMY v. US
infringement action since he had never obtained a valid
patent. Chinsammy then timely appealed to this court.
DISCUSSION
Pursuant to 28 U.S.C. § 1498, the Court of Federal
Claims has jurisdiction over infringement actions brought
against the United States:
Whenever an invention described in and covered
by a patent of the United States is used or manu-
factured by or for the United States without li-
cense of the owner thereof or lawful right to use or
manufacture the same, the owner’s remedy shall
be by action against the United States in the
United States Court of Federal Claims for the re-
covery of his reasonable and entire compensation
for such use and manufacture.
28 U.S.C. § 1498 (a) (emphasis added).
The plain language of this statute covers a “patent,”
and not a patent application or a provisional patent
application. Thus, “until a patent has been granted and
issued by the Patent Office [the Claims Court] has no
jurisdiction [over] a claim for compensation for the unau-
thorized use of the claimed invention.” Patton v. United
States, 75 F. Supp. 470, 473 (Ct. Cl. (1948); see also
Fulmer v. United States, 144 Ct. Cl. 812, 838 (Ct. Cl.
1959) (explaining that the Claims Court has no jurisdic-
tion to hear claims for the unauthorized use of a device
that has not yet been patented).
Chinsammy has never obtained a valid patent on his
claimed invention. To the contrary, his ’453 Application
was deemed abandoned as a result of his failure to re-
spond to the PTO’s initial office action rejecting all of the
claims. Contrary to Chinsammy’s assertions, the fact that
he filed a provisional patent application does not mean he
CHINSAMMY v. US 4
obtained a “provisional patent.” Filing a provisional
patent application can, in certain circumstances, serve to
establish a filing priority date if the inventor subse-
quently files a non-provisional patent application. See 35
U.S.C. §§ 119, 154; E.I. Du Pont De Nemours & Co. v.
MacDermid Printing Solutions, L.L.C., 525 F.3d 1353,
1358-62 (Fed. Cir. 2008). Chinsammy did not, however,
obtain any sort of “provisional patent” by filing a provi-
sional application. Because he has never been issued a
valid patent, the Court of Federal Claims correctly dis-
missed his appeal for lack of jurisdiction.