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Cornish v. United States

United States District Court, District of Columbia

March 29, 2013

UNITED STATES OF AMERICA, et al., Defendants

CORNELL D.M. JUDGE CORNISH, Plaintiff, Pro se, Washington, DC.

For UNITED STATES OF AMERICA, PATENT & TRADEMARK OFFICE, JOHN DOLL, HARRY I. MOATZ, Individually and as Officers respectively under color of federal right, JAMES TOUPIN, General Counsel, United States Patent and Trademark Office, Defendants: William Mark Nebeker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


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RICHARD W. ROBERTS, United States District Judge.


Pro se plaintiff Cornell D.M. Judge Cornish moves for reconsideration of the August 15, 2012 memorandum opinion and order granting the defendants' motion to dismiss. Cornish reargues legal arguments raised and rejected in the memorandum opinion and order, argues that he has new claims and evidence, and asserts that the court clearly erred on the facts and the law. Because Cornish has not established that there are extraordinary circumstances warranting relief from final judgment, his motion will be denied. [1]


The relevant facts are described in earlier opinions. See Cornish v. United States (Cornish III), 885 F.Supp.2d 198, 202-04 (D.D.C. 2012); Cornish v. Dudas (Cornish II), 813 F.Supp.2d 147, 147-48 (D.D.C. 2011), aff'd sub nom. Cornish v. Kappos, 474 F. App'x 779 (Fed. Cir. 2012); Cornish v. Dudas (Cornish I), 715 F.Supp.2d 56, 59-60 (D.D.C. 2010). In 1958, Cornish passed the patent examination and was registered to practice before the U.S. Patent and Trademark Office (" USPTO" ). Cornish III, 885 F.Supp.2d at 202. In

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1995, one of Cornish's former clients filed a complaint against Cornish. Id. Cornish sent a letter to the USPTO stating that he would " ceas[e] practice" before the USPTO. Id. (alteration in original) (quoting Cornish I, 715 F.Supp.2d at 59). In response, the USPTO sent Cornish a letter stating that it was treating his letter as a request to remove his name from the patent register and that Cornish should inform the USPTO if that was not his intention. Cornish I, 715 F.Supp.2d at 59. Cornish did not respond. Id. Thus, the USPTO removed Cornish from the patent register in 1996. Cornish II, 813 F.Supp.2d at 148.

Nine years later, Cornish requested reinstatement to the register. Id.

However, the USPTO denied the request based on Cornish's failure to present sufficient evidence of his ability to render patent applicants valuable service or, in the alternative, to pass the patent examination. Cornish took and failed the patent examinations administered in July of 2005, 2006, and 2007, though the USPTO's Office of Enrollment Discipline (" OED" ) had granted all of his requests to make reasonable accommodations for him to take the exams. He also sat for and failed the 2008 patent exam, during which he received the reasonable medical accommodations for which he had provided sufficient medical documentation establishing a need.

Cornish III, 885 F.Supp.2d at 202-03 (internal quotation marks and citations omitted). In 2008, Cornish petitioned the OED Director to " reconsider the reasonable accommodations provided to him during the July 2008 patent examination, and requested reinstatement to the patent register by either waiver of the requirement that he pass the examination or permission to retake the identical examination an unlimited number of times." Id. at 203. The OED Director and the Acting USPTO Director's designate denied Cornish's request for reconsideration. Id. Cornish challenged the denial as unconstitutional and also brought other constitutional and common law claims against the defendants. Id. at 203-04. The defendants, in turn, moved to dismiss Cornish's amended complaint.

On August 15, 2012, the defendants' motion to dismiss was granted " [b]ecause Cornish failed to effect proper service upon the individually-named defendants, his claim regarding USPTO rules [was] moot, sovereign immunity [barred] his common law claims and constitutional claims against the government and the employees in their official capacities, and res judicata [barred] his reinstatement claim[.]" Id. at 202. On August 24, 2012, Cornish moved for reconsideration of these rulings arguing that he has alleged new claims, there has been a recent change in law, and there is " new evidence unavailable to the Plaintiff and Court heretofore[.]" Pl.'s Mot. for Reconsideration (" Pl.'s Mot." ) at 2-3. He also argues that he is an active member of the patent bar, id. at ...

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