Opinion
Civil Action No. 02-2354 (JR).
December 9, 2003
MEMORANDUM
Plaintiff, John Galbreath, sues pursuant to 35 U.S.C. § 145 for de novo review of patent claims that were rejected by an appeals board at the U.S. Patent and Trademark Office ("PTO") on September 30, 2002. Defendant PTO moves for judgment on the pleadings or in the alternative for summary judgment on March 3, 2003.
The PTO argues that Galbreath's complaint fails to "show that the pleader is entitled to relief," Fed.R.Civ.P. 8(a). A pro se plaintiff's complaint is to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), and will survive a motion to dismiss unless it appears "'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). But the notion of liberal construction is not without limits:
The price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome.DM Research, Inc. v. Col. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999).
The purpose of Rule 8(a) is to give fair notice of a plaintiff's claims, so that the defendant may have an opportunity to respond and prepare an adequate defense. Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002). Galbraith's complaint is three paragraphs long. The first paragraph asserts this court has jurisdiction under 35 U.S.C. § 145, which authorizes civil actions against the Director of the U.S. Patent and Trademark Office and permits this court to determine whether an applicant is entitled to receive a patent. The second paragraph is entitled "statement of the claims" and reads in full:
On September 30, 2002, the Board of Patent Appeals and Interferences of the U.S. Patent and Trademark Office issued a decision on appeal for plaintiff's application #09/288,546, rejecting claims 21-27 and 29-35 of that application.
The third paragraph demands that defendant "allow claims 21-27 and 29-35, and grant plaintiff a patent on said claims." Nowhere in his complaint does Galbraith state what was erroneous about the PTO's rejection of claims 21-27 and 29-35 or even that the PTO's rejection was erroneous. Section 145 provides for de novo review of patent claims and permits a court to consider new evidence and new issues under certain circumstances, seeDeSeversky v. Brenner, 424 F.2d 857, 858 (D.C. Cir. 1970), but it does not obviate the need for a plaintiff to make the minimum Rule 8 statement "showing that the pleader is entitled to relief."
Having been alerted by PTO's motion to the inadequacy of his complaint, Galbreath has failed to cure the problem. Rather than explain his entitlement to relief, he makes a series of legal arguments explaining why his complaint does satisfy Rule 8. Opp., at 2-7. He has not offered a "factual predicate concrete enough to warrant further proceedings," DM Research, Inc., 170 F.3d at 55.
Defendant's motion to dismiss will be granted and the complaint will be dismissed without prejudice.