Glover v. Cohen

MORRIS S. GLOVER, Plaintiff, v. DANIEL E. COHEN, BRUCE C. JOHNSON, SUZANNE KAMEESE, LOWELL FRENCHand CREATIVE INTEGRATION & DESIGN, INC., Defendants.

Civil Action No. 19-734

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 19, 2021

MEMORANDUM OPINION

I. INTRODUCTION

In the mid-1990's, pro se Plaintiff Morris S. Glover litigated a patent infringement lawsuit against CNS, Inc. in the United States District Court for the Northern District of Ohio. In May 1996, the district court granted summary judgment in favor of CNS in that case, and the decision was affirmed by the United States Court of Appeals for the Federal Circuit in April 1997. Now, over two decades later, Plaintiff seeks to relitigate his patent infringement claim against a number of different defendants in this case, asserting that the prior final summary judgment decision somehow denied him due process and his Seventh Amendment right to a jury trial which violates his civil rights under 42 U.S.C. §§ 1983, 1985 and 1986.

Presently before the Court are three Motions to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendant Suzanne Kameese (Docket Nos. 27, 28), Defendants Bruce C. Johnson and Creative Integration & Design, Inc. ("CID") (Docket Nos. 31, 32), and Defendant Daniel E. Cohen (Docket Nos. 50, 51), Plaintiff's Responses in opposition thereto, and Defendants' Replies. (Docket Nos. 33-35, 37, 52-55). After careful consideration of the parties' arguments in light of the prevailing legal standards, and for the following reasons, the Motions to Dismiss are granted, and Plaintiff's Complaint is dismissed in its entirety as to all Defendants with prejudice.¹

II. BACKGROUND

As alleged in the Complaint, Plaintiff submitted his idea for a device he calls the "Nose Bridge" to American Idea Management Corporation ("AIM"), owned by Defendant Suzanne Kameese, on November 19, 1987. (Docket No. 1 at 2). According to Plaintiff, instead of assisting its inventor/clients in obtaining a patent by submitting their ideas to companies for marketing, AIM was "running a scam" and selling those ideas for its own profit. (Id.). Plaintiff claims that AIM supposedly submitted his ideas to various companies, but he subsequently found out that the companies either did not exist or, if they did, they had never heard of AIM. (Id.).

With the assistance of legal counsel, Plaintiff eventually obtained two patents for the "Nose Bridge," which he says he invented to help drain the nose: a design patent issued on October 25, 1994, U.S. Patent No. Des. 351,924 (the "'924 Design Patent"); and a utility patentissued on November 14, 1995, U.S. Patent No. 5,466,456 (the "'456 Utility Patent").² (Docket No. 1 at 3, 4).

Plaintiff next recounts that he saw a commercial in 1994 for the "Breathe Right Dilator," which he alleges "looked just like [his] patented design." (Docket No. 1 at 4). He subsequently engaged legal counsel to investigate the matter. (Id.).

As explained in Declarations from the prior litigation which are attached to Plaintiff's Complaint, Defendant Johnson was the primary inventor of the Breathe Right Dilator. (Docket No. 1-5 at 1, ¶ 1). Johnson applied for patents on the device beginning in 1991, and presented a prototype for it to CNS in October 1991. (Id.). Johnson transferred his rights in the Breathe Right Dilator to CID, which in turn granted CNS an exclusive license for the device in January 1992. (Id.). CNS began marketing the Breathe Right Dilator in October 1993. (Id.). As Johnson explained, the device improves nasal breathing by reducing nasal airflow resistance. (Id., ¶ 3).

Defendant Cohen, who was the Chief Executive Officer, Treasurer and Chairman of the Board of CNS, attested that CNS manufactures and markets the Breathe Right Dilator, which was invented by Johnson. (Docket No. 1-5 at 18, ¶¶ 1, 3). Cohen confirmed that CNS received the exclusive license for the device in January 1992 and began marketing it in October 1993. (Id., ¶ 4). Cohen explained that Plaintiff had nothing whatsoever to do with CNS or the Breathe Right Dilator at any time. (Id. at 20, ¶ 9).

Plaintiff disagrees with Johnson and Cohen, claiming he believes that "[they] may have obtained data on his device from AIM who was known for their corrupt dealings with inventors."(Docket No. 1 at 4). Without support, Plaintiff theorizes that Cohen purchased Plaintiff's idea and drawings from AIM, subsequently contacted Johnson and gave him the documents, and together they redesigned Plaintiff's drawings, reworded his documents, and renamed his idea the Breathe Right Dilator. (Id.). Based on these allegations, Plaintiff apparently attempts to assert a patent infringement claim again Johnson, CID and Cohen, claiming that the Breathe Right Dilator infringes his rights in the '924 Design Patent and the '456 Utility Patent.

As Plaintiff admits in his Complaint, however, he previously "filed a lawsuit against the companies in question in the Federal Court of Cleveland, Ohio for infringement." (Docket No. 1 at 6). That occurred on October 20, 1995, when Plaintiff sued CNS in the United States District Court for the Northern District of Ohio at Case No. 1:95CV2227, alleging that the Breathe Right Dilator infringed the '924 Design Patent and the '456 Utility Patent (hereinafter, the "Prior Ohio Litigation"). (See Docket No. 32-7 at 3).³ CNS moved for summary judgment in that case, arguing that its Breathe Right Dilator did not infringe either patent, and Plaintiff opposed the motion by contending that it was premature and he should have been allowed to obtain discovery from CNS. (Id. at 4). The district court rejected Plaintiff's position because he had had adequate time for discovery and, moreover, discovery would have been "an absurd waste of time," given that CNS demonstrated that there was no genuine issue asto any material fact. (Id. at 4, 5). The district court explained that CNS presented evidence supporting its noninfringement motion and Plaintiff failed to proffer any evidence that raised a genuine issue of material fact on noninfringement. (Id. at 13). Ultimately, the district court found that CNS's "Breathe Right^® device is completely distinct from [P]laintiff's facial cleanser" and granted summary judgment in favor of CNS. (Id. at 13, 14). The United States Court of Appeals for the Federal Circuit summarily affirmed the district court's judgment on April 7, 1997. (Docket No. 32-11). Following that decision, the named Defendants here "heard nothing further from [Plaintiff] until 2019" when he initiated this lawsuit for "[p]atent infringement, conspiracy for a summary judgment making Plaintiff's patents invalid," as well as "[d]enial of due process of law, VII Amendment to the Constitution which renders a void judgment," and "42 U.S.C. §§ 1983, 1985 and 1986." (See Docket Nos. 1 at 1; 32 at 5).

In response to Plaintiff's Complaint, all remaining Defendants have filed Motions to Dismiss.⁴ Defendants Johnson, CID and Cohen argue that Plaintiff's Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) because, even under the most liberal construction of the facts, it does not state a plausible claim for relief. (Docket Nos. 32 at 8; 51 at 8). Specifically, Defendants Johnson, CID and Cohen contend that the Complaint does not allege the elements of patent infringement but, even if it did, the claim is barred by the judgment in the Prior Ohio Litigation and the '924 Design Patent and the '456 Utility Patent expired well before the applicable limitations period. (Docket Nos. 32 at 8; 51 at 8-9). These Defendants additionally maintain that the remaining claims have no factual support and are time-barred as well. (Docket Nos. 32 at 8; 51 at 9). Defendant Kameese likewise argues thatthe Complaint should be dismissed pursuant to Rule 12(b)(6) because Plaintiff's claims against her fail as a matter of law. (See generally Docket No. 28). For reasons explained below, Defendants are correct on all counts.

III. ANALYSIS

A. Plaintiff's Patent Infringement Claim is Barred by Issue Preclusion.

As recounted above, Plaintiff filed a federal lawsuit against CNS over 25 years ago for patent infringement, alleging that CNS's Breathe Right Dilator infringed his '924 Design Patent and '456 Utility Patent. The district court entered summary judgment in favor of CNS, finding as follows: the Breathe Right Dilator did not literally infringe the '456 Utility Patent because "the Breathe Right^® device has none of the key elements of claim 1 of the '456 patent;" the Breathe Right Dilator did not infringe the '456 Utility Patent under the doctrine of equivalents because it "does not perform substantially the same function in substantially the same way to achieve substantially the same result as the product covered by the '456 patent;" and the Breathe Right Dilator did not infringe the '924 Design Patent because "there is no real resemblance between the two designs," "[t]he two designs are not substantially the same," and any resemblance would not "deceive an ordinary observer." (Docket No. 32-7 at 8, 10, 11-12). The district court's judgment was summarily affirmed on appeal. (Docket No. 32-11). At that point, Plaintiff took no further action regarding the Prior Ohio Litigation.

Despite the final decision in the Prior Ohio Litigation that CNS's Breathe Right Dilator did not infringe the '924 Design Patent and '456 Utility Patent, Plaintiff now seeks to relitigate that very same issue against different Defendants in this case. Plaintiff's attempt at a second bite at the apple on his patent infringement claim is underscored by his request that this Court "declare the Summary Judgment a void judgment ruling" and "reinstate [his] patents so that [he]can prove that he is the original owner of the 'Nose Bridge' idea and that Bruce C. Johnson and others infringed upon his idea." (Docket No. 1 at 11).

Defendants Johnson, CID and Cohen argue that Pla...