Hemphill v. Johnson & Johnson

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALLEGRA HEMPHILL,
Plaintiff-Appellant,
v.
JOHNSON & JOHNSON,
Defendant-Appellee.
______________________
2013-1503
______________________
Appeal from the United States District Court for the
District of Columbia in No. 12-CV-0279, Judge Colleen
Kollar-Kotelly.
______________________
Decided: January 14, 2014
______________________
ALLEGRA HEMPHILL, of Washington, DC, pro se.
GEORGE PAPPAS, Covington & Burling, LLP, of Wash-
ington, DC, for defendant-appellee. With him on the brief
were JEFFREY B. ELIKAN and KELLY V. SILVERMAN.
_____________________
Before NEWMAN, DYK, and MOORE, Circuit Judges.
PER CURIAM.
2 HEMPHILL v. JOHNSON & JOHNSON
Allegra Hemphill appeals from two decisions of
the United States District Court for the District of Co-
lumbia. The district court denied Hemphill’s Motion for
Relief from Judgment pursuant to Rule 60(b), in which
she sought to have the court set aside its January 2013
order dismissing Hemphill’s complaint for failure to state
a claim. The district court also granted defendant John-
son & Johnson’s motion for sanctions under Rule 11(b),
barring Hemphill from filing future patent infringement
actions against Johnson & Johnson without first obtain-
ing leave of the district court. We affirm.
BACKGROUND
Hemphill first filed suit against Johnson & Johnson
(“J&J”) in the United States District Court for the District
of Maryland in 1999, alleging that J&J’s Stayfree, Care-
free, and Serenity sanitary napkins and adult inconti-
nence products infringed claim 2 of United States Patent
No. 4,557,720 (“the ’720 patent”). Hemphill v. McNeil-
PPC, Inc., 134 F. Supp. 2d 719, 722 (D. Md. 2001)
(Hemphill I). The Maryland District Court construed the
claims and ultimately determined that the accused prod-
ucts did not infringe the ’720 patent, either literally or
under the doctrine of equivalents. Id. at 727-29. We
affirmed. Hemphill v. McNeil-PPC, Inc., 25 F. App’x 915,
915 (Fed. Cir. 2001). Since then Hemphill unsuccessfully
sought to enforce the ’720 patent against other defendants
and similar accused products. Hemphill v. Kimberly-
Clark Corp., 605 F. Supp. 2d 183 (D.D.C. 2009); Hemphill
v. Kimberly-Clark Corp., 530 F. Supp. 2d 108 (D.D.C.
2008); Hemphill v. Proctor & Gamble Co., 258 F. Supp. 2d
410 (D. Md. 2003), aff’d, 85 F. App’x 765 (Fed. Cir. 2004).
The ’720 patent expired on December 10, 2002. None-
theless, in February 2012, Hemphill again filed suit
against J&J, alleging that J&J’s Stayfree and Carefree
brand feminine care products infringe both independent
claims of the ’720 patent, and that the defendant induced
HEMPHILL v. JOHNSON & JOHNSON 3
infringement of the ’720 patent by a third party. The
district court granted defendant’s motion to dismiss,
denied plaintiff’s subsequent Rule 60(b) motion, and
granted defendant’s motion for Rule 11 sanctions. The
plaintiff appealed the Rule 60(b) decision and the sanc-
tions order to the District of Columbia Circuit, and the
District of Columbia Circuit transferred the appeal to this
court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
DISCUSSION
On both issues presented in this appeal, we follow re-
gional circuit law. The District of Columbia Circuit
reviews both the denial of a Rule 60(b) motion and a
sanctions order for abuse of discretion. Lucas v. Duncan,
574 F.3d 772, 775 (D.C. Cir. 2009); Twelve John Does v.
District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir.
1988).
Since the ’720 patent had expired in 2002 and the
statute precludes recovery “for any infringement commit-
ted more than six years prior to the filing of the com-
plaint,” 35 U.S.C. § 286, the district court dismissed
Hemphill’s claims for untimeliness. In her Motion for
Relief from Judgment, Hemphill argued two bases for
reconsideration, “(1) upon re-examination, the [’]720
Patent reissued; and (2) the District of Maryland court
that first construed the [’]720 patent erred in construing
the term ‘swab.’” JA 2310.
The district court correctly ruled that “reexamination
certificates do not alter the term of a patent” and therefore,
the certificate did not change the fact that even if J&J
had infringed the ’720 patent before its expiration in
2002, recovery was time-barred when Hemphill sued in
2012. JA 2310 (emphasis in original). The district court
also correctly held that Hemphill’s “continued disagree-
ment with the claim construction of the Hemphill I court
is not a basis for relief under Rule 60(b).” JA 2311.
4 HEMPHILL v. JOHNSON & JOHNSON
Hemphill has not shown any grounds for relief under Rule
60(b), and we affirm the district court’s decision.
Hemphill provides no argument as to why the district
court’s award of sanctions was in error. The District of
Columbia Circuit has set forth guidelines for anti-filing
injunctions in In re Powell, recognizing that such an
injunction is “an extreme remedy.” 851 F.2d 427, 431
(D.C. Cir. 1988) (internal quotation omitted). We have
reviewed the record and find that the district court’s
analysis complies with Powell, particularly in light of
Hemphill’s multiple unmeritorious filings against J&J
and others.
AFFIRMED