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Bally Gaming, Inc v. David Kappos

June 3, 2011

BALLY GAMING, INC., PLAINTIFF,
v.
DAVID KAPPOS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION AND ORDER

Defendants Betty Ringo and James Pearson, contending that this Court lacks personal jurisdiction over them, have moved to dismiss this patent infringement suit. Because the Court finds personal jurisdiction proper under 35 U.S.C. §§ 291 and 146, as well as under the Due Process Clause of the Fifth Amendment, their effort does not succeed.*fn1

I.Factual Background

Plaintiff Bally Gaming, Inc. owns United States Patent 5,816,918 (the "Kelly '918 Patent"). Compl., ¶ 6 (Background). Defendants Ringo and Pearson own United States Patent 5,711,715 (the "Ringo '715 Patent"). Id., ¶¶ 3-4. Defendant David Kappos is the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Id., ¶ 2. This case arises from Plaintiff's efforts to secure a "confirmation of patentability of all pending claims" relating to the Kelly '918 Patent. Id., ¶ 21. More specifically, Plaintiff appeals from a decision of the United States Patent and Trademark Office's Board of Patent Appeals and Interferences affirming the USPTO's denial of Plaintiff's pending patent claims on the ground that "the Kelly '918 Patent interferes with and is anticipated or rendered obvious by" the Ringo '715 Patent. Id., ¶¶ 8-9 (Background), 14-15. Plaintiff contends that the "claimed invention of the Kelly '918 Patent was conceived prior to conception of the alleged invention of the Ringo '715 Patent," and that "Director [Kappos] erred in denying petitions to suspend the rules or to otherwise allow submission of evidence of prior invention by the inventors of the Kelly '918 Patent before invention of the Ringo '715 Patent." Id., ¶¶ 20, 16.

Plaintiff is a corporation organized under the laws of, and having its principal place of business in, Nevada. Id., ¶ 1. Defendant Ringo is a Texas resident. Id., ¶ 3; Mot. at 2. Defendant Pearson is a Florida resident who operates a small business in Tennessee. Compl., ¶ 4; Mot. at 2. Ringo and Pearson assert, and Plaintiff does not contest, that they have no contacts with the District of Columbia beyond the fact of their patent ownership. Mot. at 3.

Plaintiff filed its Complaint on November 5, 2010, seeking issuance of a reexamination certificate under 35 U.S.C. § 145 and review of agency action under 5 U.S.C. §§ 701-706, and alleging an interfering patents claim under 35 U.S.C. § 291. On April 12, 2011, Defendants Ringo and Pearson filed their Motion to Dismiss for Lack of Personal Jurisdiction under Federal Rule of Civil Procedure 12(b)(2), which the Court now considers.

II.Legal Standard

To survive a motion to dismiss under Rule 12(b)(2), Plaintiff bears the burden of "establishing a factual basis for the [Court's] exercise of personal jurisdiction over the defendant." Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990) (citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984), overruled on other grounds by Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994)). To meet this burden, Plaintiff "must allege specific facts connecting the defendant with the forum." Capital Bank Int'l Ltd. v. Cittigroup, Inc., 276 F. Suppp. 2d 72, 744 (D.D.C. 20003) (citing SSecond Amendm ment Foundattion v. U.S. CConference of Mayors, 2274 F.3d 521, 524 (D.C. Cir. 2001))). In determinning whetherr a basis for ppersonal juriisdiction exists, "factual discrepancies appearingg in the recorrd must be reesolved in faavor of the pllaintiff." Neew York Zooological Socciety, 894 F.22d at 456 (citinng Reuber, 7750 F.2d at 11052).

III.A

Analysis Plaintiff asserrts that persoonal jurisdicttion over Riingo and Peaarson is confferred on thiss Court by the nationw wide-service--of-process pprovision of 35 U.S.C. §§ 146, as incoorporated in 35 U.S.C. § 291, the stattute under w which Plaintiff brings its interferencee claim. Oppp. at 3.

Defendannts Ringo annd Pearson raaise two arguuments in deenying that ppersonal juriisdiction exists. First, they maintain tthat "Sectionn 291's authoorization of 'service' on n U.S. citizenns or nationw wide service iss incompletee and ambiguuous at best." Reply at 44. In the alteernative, theey contend thhat, "notwithstanding thee existence of a statutoryy basis for thee exercise off jurisdictionn over the defendannts," id. at 2, to so find inn the presentt case wouldd violate theiir Fifth Amendment Duee Process rrights "[b]ecause [they] llack 'minim mum contactss' [with the D District of Columbia] annd did not 'purpposefully avaail' themselvves of the law ws of the District of Collumbia." Moot. at 6. Thee Court adddresses eachh in turn.

A A. 35 U.S.C.. § 146 Federal Rule of Civil Procedure 4(k)((1)(C) providdes: "Servinng a summonns . . . establishes personal jurisdiction over a defenndant . . . whhen authorizeed by a fedeeral statute." Title 35, seection 291 of thhe U.S. Codee gives the ow wner of an innterfering paatent a privaate cause of aaction againnst the owners oof the first paatent and expplicitly addreesses the queestion of jurrisdiction by invoking thhe provisionns of 35 U.S.C. § 146. SSection 146 ccontains a naationwide-seervice-of-proocess provision that, in certain specified circumstances, vests jurisdiction over patent interference claims in this Court:

If there be adverse parties residing in a plurality of districts not embraced within the same state, or an adverse party residing in a foreign country, the United States District Court for the District of Columbia shall have jurisdiction and may issue summons against the adverse parties directed to the marshal of any district in which any adverse party resides.

As the plain language of the statute indicates, ยง 146 gives this Court jurisdiction over Defendants in ...


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