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Svatovic v. United States Patent and Trademark Office

United States District Court, Second Circuit

September 9, 2013

ZARKO SVATOVIC, Plaintiff,
v.
UNITED STATES PATENT AND TRADEMARK OFFICE, ANDREW HIRSHFELD, Deputy Commissioner, ANGELA D. SYKES, USPTO Director, GENE KIM, Supervisory Examiner, and VISHU K MENDIRATTA, Examiner, Defendants.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge.

Plaintiff Zarko Svatovic asserts that defendants subjected him to unlawful discrimination during the patent-application process because he was not represented by an attorney. Construing the Complaint generously in his favor as a pro se, plaintiff appears to contend that the defendants denied him equal protection under the law in violation of the Fifth Amendment. The Court construes his claims as asserting a constitutional violation under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971).

Defendants move to dismiss the Complaint, arguing, among other things, that the plaintiff has failed to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. (Docket # 16.) For the reasons explained, the defendants' motion to dismiss is granted.

BACKGROUND.

In reviewing the Complaint, all non-conclusory factual statements are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (per curiam).

Plaintiff submitted to the United States Patent and Trademark Office (the "PTO") an application for the patent of an unspecified invention, at application number 11/397, 977. (Compl't ¶ 1.) While the Complaint does not identify the invention or the date of filing, patent records indicate that plaintiff filed application 11/397, 977 on April 6, 2006, and sought a utility patent for "an expanded Chess Game played on 10 × 10=100 square chessboard." See U.S. Patent No. 8, 448, 946 (filed April 6, 2006) (issued May 28, 2013). The same records establish that the patent application was granted after this action was filed. Id.

Defendant Vishu K. Mendiratta was assigned to examine the application. (Compl't ¶ 1.) As explained in the Complaint:

In a brief exchange Mr. Mendiratta informed the plaintiff that he will not be able to get [sic] patent unless he hires a lawyer. He also stated that he would not conduct any further discussion with the plaintiff in person. The plaintiff did not believe him because if this were true the USPTO would be denying the plaintiff his basic right to self representation. USPTO would in fact discriminate against the plaintiff because he was not represent [sic] by a lawyer.[1]

(Compl't ¶ 1.) According to plaintiff, "[i]n the course of six or so years of irrational prosecution, " Mendiratta and the other defendants "managed to convince the plaintiff that in deed [sic] there is unwritten USPTO staff supported policy of discrimination against small inventors who are not represented by lawyers." (Compl't ¶ 1.)

Plaintiff states that in October 2008, he complained to defendant Gene Kim about Mendiratta's conduct. (Compl't ¶ 2.) Plaintiff told Kim that Mendiratta "was sabotaging his case by employing obviously erroneous facts, something that Mr. Kim could easily confirm." (Compl't ¶ 2.) Kim took no "meaningful" action, however, thereby "failing in his supervisory function and fully supporting discriminatory practices of his subordinate." (Compl't ¶ 2.)

As described in the complaint, three years later, "the Board of Appeals" concluded that Mendiratta's "arguments were based on errors." (Compl't ¶ 2.) Plaintiff alleges that Mendiratta then should have issued him a patent, but instead "reopened prosecution of the case based on new grounds." (Compl't ¶ 3.) Plaintiff asserts that on October 7, 2011, he wrote to the USPTO director requesting "the reopening of his case, " and explains: "The plaintiff's arguments - this is very important - were referring to errors in facts and reasoning for the reopening of the case and not to fault procedures the examiner followed. " (Compl't ¶ 3.) Plaintiff alleges that defendant Angela D. Sykes "ignored the meaning of plaintiff's petition and fabricated procedural arguments" in an attempt to avoid the petition's " real subject matter ...." (Compl't ¶ 3.) As a result, plaintiff contends, Sykes "is fully responsible in supporting discrimination of her subordinates and the office." (Compl't ¶ 3.)

The Complaint states that on November 23, 2011, plaintiff requested reconsideration of his petition, arguing that Sykes "fabricated" grounds for its rejection. (Compl't ¶ 4.) It asserts that on August 13, 2012, defendant Andrew Hirshfeld rejected the petition on review, using "the same fabricated procedural argument the plaintiff never made as an excuse...." (Compl't ¶ 4.) "Consequently, Mr. Hirshfeld is fully responsible in supporting discrimination of his subordinates and the office." (Compl't ¶ 4.)

Plaintiff contends that the PTO "is ultimately responsible for USPTO employees who practice ignoring facts and common sense as a way to discriminate and deny rights to small inventors who cannot afford a lawyer. Therefore, USPTO as a whole is complicit and responsible for discriminating against the plaintiff " (Compl't ¶ 5.) Plaintiff states that his claims do not implicate the ultimate merits of his patent application, but "is directed exclusively at the discriminatory practices in handling of the case by the listed Defendants, which caused harm to the plaintiff." (Compl't ¶ 6.) "The unlawful discriminatory practices rendered the plaintiff unable to pursue commercial aspects of his project. The plaintiff invested heavily into the development of Internet implementation of his patent." (Compl't § IV.) The Complaint seeks $1 million in money damages. (Compl't § IV.)

The Complaint does not expressly state whether plaintiff is pursuing claims against the defendants in their individual or official capacities. In a letter to the Court dated December 6, 2012, plaintiff states that, in response to an inquiry from defendants' counsel, that he is "holding the defendants individually responsible for discriminating against me and I am holding the USPTO organization as a whole, which the defendants are part of, ...


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