Bhagat v. United States

1

URVASHI BHAGAT, Plaintiff-Appellant v. UNITED STATES PATENT AND TRADEMARK OFFICE, KATHERINE K. VIDAL, IN HER OFFICIAL CAPACITY AS UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, UNITED STATES, Defendants-Appellees

No. 2023-1545

United States Court of Appeals, Federal Circuit

April 3, 2024

This disposition is nonprecedential.

Appeal from the United States District Court for the Eastern District of Virginia in No. 1:20-cv-01515-CMH-IDD, Senior Judge Claude M. Hilton.

URVASHI BHAGAT, Palo Alto, CA, pro se.

MAUREEN DONOVAN QUELER, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for defendants-appellees. Also represented by OMAR FAROOQ AMIN MARY L. KELLY, THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED JESSICA D. ABER, MATTHEW JAMES MEZGER, Office of the United States Attorney for the Eastern District of Virginia, United States Department of Justice, Alexandria, VA.

Before PROST, CLEVENGER, and CUNNINGHAM, Circuit Judges.

PER CURIAM.

Urvashi Bhagat ("Bhagat") appeals several orders from the United States District Court for the Eastern District of Virginia: requiring Bhagat to file paper motions to the court, rejecting her requests for discovery enlargement and rescheduling of the pretrial conference, denying her request to file a second amended complaint, denying her request to exclude an expert, granting defendant United States Patent and Trademark Office's ("PTO") partial motion to dismiss Bhagat's causes of action unrelated to patentability, denying her request to strike the PTO's motion for summary judgment and granting that motion finding that Bhagat's patent claims are ineligible under 35 U.S.C. §§ 101 and 103. Bhagat also asserts various due process violations against the district court. We affirm.

BACKGROUND

A. The Patent Application

Bhagat is the inventor of the United States Patent Application No 13/877,847 (the "Application"). The Application claims are directed to nutritional formulations containing omega-6 fatty acids and antioxidants, which the Application describes as contained "in any orally acceptable form including, capsules, tablets, liquid formulations, or whole foods" and administered orally. The Application claims a "packaged product" where "the intermixture of omega-6 fatty acid(s) and antioxidant(s) is not any single specific variety of a vegetable, a fruit, a nut, or a seed," and the dosage ranges "from 1 to 40g of omega-6 fatty acids and from 25mg to 10g of antioxidants . . . wherein the antioxidants comprise one or more polyphenols in the dosage of greater than 5mg." App. Br. to PTO at 46, claim 82. The Application also claims the product in a "kit" that includes a range of two to twenty different nutritional formulations, "which collectively provide an amount of nutrients from 0.0001 to 100 g/kg body weight . . . 40-80% of individual's daily calories . . . 10-50% calories from protein, 15-50% calories from lipids, and 35-85% calories from carbohydrates; and/or . . . deliver at least 50% of daily micronutrients for the individual" and/or is made up of "at least one of: vegetable or vegetable juice packs, fruit or fruit juice packs, dry grain packs, cereal packs, legume, grain, nuts, or seed packs, meat or seafood packs, or herbs, lipids, meals, snack, side dish, salad, desserts, milks, powder, puree, or yogurt packs." App. Br. to PTO at 23-4, claim 95.

The Application also contains method claims, wherein claim 88 sets out steps for "administering the dosage to an individual, wherein the individual belongs to a diet cohort" based on factors like "gender, age, genetic profile, family history, climactic temperature, or medical condition," claim 97 describes a method for treating "a medical condition or disease in the individual" and claim 116 recites a method for treating a variety of conditions such as aging, mental disorders, diabetes, autoimmune and infectious diseases. App. Br. to PTO at 21, 24, 31-32, claims 88, 97, and 116. None of the method claims, however, "include tailoring the nutrient dosages in the product to the diet cohort or restricting the total daily intake of any of the claimed nutrients." J.A. 21.

The Application additionally includes a withdrawn claim directed to a computer system to implement the method claims and to output nutritional plans for individuals based on dietary preferences and guidelines "wherein the nutrition program comprises a listing of formulations, optionally comprising food items, wherein from 1 to 40g of omega-6 fatty acids and from 5mg to 10g of antioxidants comprising at least 5mg of one or more polyphenols are included in the program for daily consumption by the individual." App. Br. to PTO at 29-30, claim 112.

B. Procedural History

1. PTO Proceedings

Bhagat filed the Application with the PTO in 2013. The PTO examiner rejected all pending claims of the Application for obviousness and rejected claims 82 and 99 for failing to comply with the written description requirement, claims 82, 87, 91-93, 96, 97, 99, 102, 109, 110, and 113-120 for indefiniteness, and claims 88, 89, 95, 103, and 107-110 for improper dependency.

Bhagat appealed to the Patent Trial and Appeal Board ("Board"), which reversed the rejection for written description and affirmed the rejection for obviousness on the merits.^[1] The Board affirmed the obviousness rejection because the Application claims were "obvious in light of numerous past expert studies and disclosures," particularly Claudia R. Morris's U.S. Published Patent Application Number 2008/0213239 ("Morris"). Bhagat v. U.S. Pat. &Trademark Off., No. 1:20-cv-1515, 2023 WL 2721003, at *2 (E.D. Va. Mar. 30, 2023) ("Summary Judgment Opinion").

The Board explained that Morris addresses the treatment of various conditions, like cardiovascular disease, by disclosing nutritional formulations comprising omega-6 fatty acids and Vitamin E in dosages and amounts that overlap with those in the Application claims. Id. at *2 ("Morris shows that the formulations comprise from about 50 mg to about 500 mg omega-6 fatty acids that may be administered once, twice, or three times daily, which would equal a dosage ranging from 50 mg to 1,500 mg of omega-6 fatty acids a day."). The Board also found that Morris disclosed packaged formulations of omega-6 fatty acids, Vitamin E, and polyphenols, as well as dosages of omega-6 and Vitamin E in the ranges claimed in the Application claims and disclosed that "dosages are a result-effective variable and may be optimized for an individual," rendering the Application's claimed dosages obvious. Id. Factors discussed in Morris as impacting the preparation of formulations include age, weight, and genetic makeup, which overlap with the diet cohort factors in the Application. Id. at *2. The Board found that Morris disclosed most of what the claimed invention covered, and that the only difference- that the Application disclosed using nutrients from different sources-was rendered obvious from other expert disclosures teaching the mixtures of different nutrient sources. Id. at *2 ("The only difference the Board found between Morris and [the Application's] claimed formulation was an explicit disclosure of using nutrients from different sources .... [which] would have been obvious in light of another expert's teachings of oil blends from different sources.").

2. District Court Proceedings

On December 10, 2020, Bhagat filed suit in the United States District Court for the Eastern District of Virginia to challenge the Board's decision, alleging that the district court had jurisdiction pursuant to 35 U.S.C. § 145 and 28 U.S.C. §§ 1331, 1338(a), and 1361. Id. at *2. Bhagat amended her complaint on April 19, 2021. Am. Compl., Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 13. In addition to alleging that the PTO erroneously rejected her patent claims, Bhagat asserted entitlement to general damages due to the PTO's "bad faith," and asserted causes of action for "taking of her property, including but not limited to her patent," tortious harassment, and a mandamus compelling the PTO to issue the Application's rejected patent claims. Am. Compl. at ¶¶ 64-84, Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 13; Bhagat v. U.S. Pat. & Trademark Off., No. 1:20-cv-1515, 2021 WL 3130866, at *2 (E.D. Va. July 22, 2021) ("Motion to Dismiss Opinion").

On July 22, 2021, the district court granted the PTO's motion to dismiss all of Bhagat's causes of action that were not related to the patentability of the Application claims and to strike Bhagat's request for a jury trial. Motion to Dismiss Opinion, 2021 WL 3130866, at *3.

The district court first determined that it did not have subject matter jurisdiction over the claims for takings, money damages, or tortious harassment due to sovereign immunity. Id. at *1. As the district court noted, agencies of the United States, such as the PTO, are generally shielded from liability by sovereign immunity unless Congress has expressly waived it. Id.

The district court explained that "Congress has not waived its sovereign immunity for money damages in actions brought pursuant to 35 U.S.C. § 145" and therefore found it did not have jurisdiction over any of Bhagat's claims for money damages under Section 145. Id.

The district court then stated that the Tucker Act waives sovereign immunity for claims for non-tort money damages such as takings claims, but gives exclusive jurisdiction to the Court of Federal Claims when those damages are over $10,000, and that the Federal Tort Claims Act waives sovereign immunity for tortious harassment only if a plaintiff first presents an administrative claim to the agency that the plaintiff purports is responsible for their injury. Id. at *1-2. ...