Golden v. United States

fn riggi 3 . FlLED MAR 29 2018 U. S COURT OF FEDERAL CLA||V|S In the United States Court of Federal Claims No. 13- 307C Filed: March 29, 2018 ****************$$*$$****$$*$$$$$**** LARRY GOLDEN, Plaintiff, pro se, v. THE UNITED STATES, Defendant. %**%%****%%%&**%-X-*%*%**-l$-I~%€-J€- *$**$******$***$$*******$************ Larry Golden, Greenvil]e, South Carolina, pro se. Nicholas Jae-Ryoung-Kim, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Govemment. MEM()RANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART THE GOVERNMENT’S MOTION FOR PARTIAL DISMISSAL BRADEN, ChiefJudge. 45 C.F.R. § 75.435(h) (Uniform Administrative Requirements); 48 C.F.R. § 2.101(b) (Federal Acquisition Regulations Defmitions); 28 U.S.C. §§ 1491(a) (Tucker Act Jurisdiction), 1498(3.) (Patent Infringement Jurisdiction), 1927 (Liability for Excessive Costs); 31 U.S.C. §§ 6303 (Using Procurement Contracts), 6304 (Using Grant Agreements), 6305 (Using Cooperative Agreements); 35 U.S.C. §§ 102 (Novelty), 103 (Obviousness), 11 1(a),(b) (Application for Patent), 120 (Benef`lt of Earlier Filing Date), 251 (Reissue of Defective Patents), 252 (Effect of Reissue); Manual of Patent Examining Procedure (9th ed. 2015); and Rule of the Unjted States Court of Federal Claims 12(b)(1) (Jurisdiction), 12(b)(6) (Failure to State a Claim), 12(h)(3) (Lack of Subject-Matter Jurisd_iction), 15(a) (Amendments Before Trial), 41 (b) (Dismissal of Actions), 56(€), (f) (Summary Judgment). To facilitate review of this Memorandum Opim'on And Order, the coul“£ has provided the following outline. I. RELEVANT FACTUAL BACKGROUND. A. The Prosecution History Of The Relevant United States Patent Applications. B. National Science Foundation Grants And Cooperative Agreements. C. National Institutes Of Health Grants. II. PROCEDURAL HISTORY. III. STANDARD OF REVIEW. A. Jurisdiction. B. Stanclard Of Review For A Motion To Dismiss Under RCFC 12(b)(1). C. Standard Of Review For A Motion To Dismiss Under RCFC 12(b)(6). D. Standard Of Review For Pro Se Litigants. IV. DISCUSSION. A. Whether Certain Patent Infringement Allegations 111 The August 10, 2017 Fifth Amended Complaint Should Be Dismissed Under RCFC 12(b)(1) And 12(`0)(6). 1. Patent Infringement Allegations 111 The August 10, 2017 Fifth Amendod Complaint. 2. The Govemment’$ Argument. 3. Plaintiff’ 5 Response And Motion For Leave To Fiie A Motion For Summary Judgment. 4. The Govemrnent’$ Reply And Opposition To Plaintiff’ s Motion For Leave To File A Motion For Summary Judgment. 5. Plaintiff’ S Reply. 6. The Court’s Resolution. a. Governing Precedent. b. Patent Infringement Allegations Concemiug National Science Foundation Gra.nts And Cooperative Agreements Must Be Dismissed Under RCFC 12(b)(1). i. Regarding National Science Foundation Grants. ii. Regarding National Science Foundation Cooperative Agreements. c. Patent lnfringement Allegations Conceming National Institutes Of Health Grants Must Be Dismissed Under RCFC 12(b)(1). d. Patent lnfringement Allegations Conceming The Govemment’$ Alleged Use Of “Smartphones And Other Consumer Devices” Must Be Dismissed Under RCFC 12(b)(1) And 12(b)(6). V. CONCLUSION. Patent Infringement Allegations Concerning Broad Agency Announcements Must Be Disrnissed Under RCFC 12(b)(6). Patent Infringement Allegations Concerning The ’033 Patent Must Be Dismissed Under RCFC 12(b)(1). Patent lnfringement Allegations Concerning UniSSued Patent App1ications And Pre~lssuance Use Or Manufacture Must Be Dismissed Under RCFC 12(b)(1). Patent lnfringement Allegations Concerning The ’761, ’280, And ’189 Patents Must Be Dismissed Under RCFC 12(b)(6). I. RELEVANT FACTUAL BACKGROUN]).l A. The Prosecution History Of The Relevant United States Patent Applications. On April 5, 2006, Larry Golden filed U.S. Patent Application No. 11/397,118 (the “’ 1 18 Application”), entitled “Multi Sensor Detection And Lock Disabling System,” With the United States Patent and Trademari )(6). The Government argues that patent infringement allegations28 “ The Fifth Amended Complaint alleges the following with respect to the “LG Electronics G5 Smartphone”: Upon information and belief, the United States has infringed, and continues to infringe, at least claim 22 of the ’439 Patent, and claims 18, 118, 12, 28, 25, 30, 22, and 20 of the ’990 Patent as a current manufacturer, consumer, and/or user of the “LG Electronics G5 Smartphone”. Manufacture for the Government; 2008: The “Cell-All” initiative rl`he [DHS-S&T] . . . , Cell-All aims “to equip your cell phone with a sensor capable of detecting deadly chemicals”, says Stephen Dennis, Cell-All’s program manager. [DHS-S&T] pursued cooperative agreements with four cell phone manufacturers: Qualcomm, LG, Apple, and Samsung. Used by the Government; 2016: Both the LG G5 and V10 smartphones can be used by the [DOD]. The LG smartphones received a security certification from the iDlSA], as well as a certification by the [NIAP]. Sensors will integrate with 261 million cell phones now used in the U.S. [and l]everage billions of dollars spent each year in sensor, carrier network[,] and cell phone development Multiple sensors network for chemical profiling; Cell-All aims “to equip your cell phone with a sensor capable of detecting deadly chemicals”, says Stephen Dennis, Cell-All’s program manager. Multiple sensor units per phone are possible Stephen Dennis envisions a chemical sensor in every cell phone in every pocket, purse, or belt holster. AS a result of contracts, agreements, and procurements with various Government Agencies (1111 49-78), the [DHS], the [DOD], and LG Electronics for the manufacture development, commercialization, and/or use of the communication/monitoring device “LG Electronics G5 Smartphone”, the United States has used, authorized the use, and manufactured, without license or legal right, Plaintiff’ s inventions described in and covered by the ’439, and ’990 Patents. 8/ l()/ 17 Am. Compl. 1111 96-97 (bold in original). 28 The paragraphs in the Fifth Amended Complaint that include patent infringement allegations “relating generally to smartphones and other consumer devices” are: 1111 96»97, 101-02, 106-07, 111-12, 116-17, 121-»22, 126-27, 131-32, 136-37, 141W42, 14647, and 151-52. These paragraphs are highlighted in orange in the attached Court Exhibit B. 32 relating generally to smartphones and other consumer devices” should be dismissed under RCFC l2(b)(l), because the Fifth Amended Complaint “fails to sufficiently allege actual ‘use’ by the [G]overnrnent of the various combinations of consumer devices, nor would the [G]overnrnent’s use be plausible.” 10/20/17 Gov’t Mot. at 17. The Fifth Amended Complaint includes patent infringement allegations concerning the Government’s alleged “use” and “manufacture” of other “smartphones [and] consumer devices,” each of which repeats the text of 28 U.S.C. § 1498(a) in conclusively alleging that, c‘[als a result of contracts, agreements, and procurements with various Government Agencies (1111 49~78) . . . the United States has used, authorized the use, and manufactured . . . Plaintiff’s inventions[.]”’ 8/10/17Am.Comp1.111197,102,107, 112, ll7, 122, 127, 132,137,142, 147,152. To support this allegation, the Fifth Amended Complaint repeatedly cites to 1111 49-78 of the Fifth Amended Complaint. These paragraphs describe the Government’s intent to °‘allow” or “approve” the “use” of various “smartphones and other consumer devices,” e.g., “the iPhone 50 and SS.” 8/10/17 Am. Compl. 1l 75 . Por example, 11 53 of the Fifth Amended Complaint states: 2012: “The [DOD] expects in coming weeks to grant two separate security approvals for Samsung’s Galaxy smartphones, along with iPhones and iPads running Apple’s latest operating system-~moves that would boost the number of U.S. government agencies allowed to use those devices. An approval by the Pentagon is considered as the highest standard[] in security.” 8/10/l7 Am. Compl. 11 53 (emphasis added). Similarly, 11 72 of the Fifth Amended Complaint states: 20l4: “By opening its networks to Samsung and Apple devices, [DISA] . . . intends to broaden the variety of mobile computers that troops and civilian [DOD] employees can use in the field, on bases, in offices and elsewhere to receive and send information and work almost anywhere at any time.” 8/10/17 Am. Compl. 1172 (emphasis added). 'l`he Fifth Amended Complaint, however, does not allege that the Government’s intent to “allow” or “approve” the use of “smartphones and other consumer devices” infringes Plaintiff s patents. lnstead, the Fifth Amended Complaint alleges that the Govemment’ s use of these devices fn combination with other “devices” or “programs,” e.g., the “‘Cell-All’ initiative,” infringes Plaintiff" s patents. 8/10/17 Am. Compl. 1111 96~97. No factual allegations, however, support assuming that the Government used or authorized the use of these other “devices” or “programs” to infringe Plaintiff’ s patents. For example, although the Fifth Amended Complaint alleges that the “LG Electronics G5 Smartphone . . . can be used” by the Government, such an allegation does not support the conclusion that the Government used or authorized the use of these devices to run the “‘Cell-All’ initiative.” 8/10/17 Am. Compl. 1111 96-97. Nor do such allegations imply that the Govemment’s use of the “LG Electronics G5 Smartphone” infringes Plaintiff s patents, since the Government may simply use these devices to make calls. Without supporting factual allegations, however, the court cannot assume infringing use or manufacture by the Government See Nortor.¢, 266 U.S. at 515 (“lt is quite true that the jurisdiction of a federal court must affirmatively and distinctly appear and cannot be helped by presumptions or by argumentative inferences drawn from the pleadings.”); see also SB CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRACTICE & PROCEDURE § 1350 (3d ed. 2004) (“[A]rgumentative (as opposed to reasonable) inferences 33 favorable to the pleader will not be drawn and conclusory allegations or conclusions of law will not be credited.”). ln sum, although the factual allegations of the Fifth Amended Complaint may support a conclusion that the Government “allowed” or “approved” the “use” of various “smartphones and other consumer devices,” they do not support the conclusion that the Government used or authorized the use of these devices in an infringing manner. For these reasons, the court has determined that the patent infringement allegations contained in 1111 96~97, 101-02, 106-07, 111-12, 1l6-l7, 121-22, 126-27, 131-32, 136»»~37, 141-42, 146-47, and 151~52 of the August 10, 2017 Fifth Amended Complaint failed to satisfy Plaintiff’s burden to establish jurisdiction under 28 U.S.C. § l498(a). Accordingly, these paragraphs of the Fifth Amended Complaint must be dismissed under RCFC 12(b)(1). ln the alternative, the Government argues that the same allegations should be dismissed under RCFC 12(b)(6), for “improperly alleg[ing] infringement by or for the [G]overnment in irreconcilably vague and omnibus fashion by repeatedly citing ‘contracts, agreements, and procurements with various Government Agencies.”’ 10/20/ 17 Gov’t Mot. at 17. The Govemment’s position is correct, because the Fifth Amended Complaint does not contain factual allegations supporting that, “[a]s a result of contracts agreements and procurements with various Government Agencies . . . the United States has used, authorized the use, and manufactured . . . Plaintiff’s inventions[.j” 8/10/ 17 Am. Compl. 11 97 (ernphasis added). The Fifth Amended Complaint fails to identify the “contracts, agreements, and procurements” at issue. Without more, the Fifth Amended Complaint has not met the requirements of Twombly and labal. Nor does the Fifth Amended Complaint provide anything other than conclusory allegations that the Government used or authorized the use of “smartphones and other consumer devices” in a manner that infringes Plaintiff’s patents Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [however,] do not suffice.” Iql)al, 556 U.S. at 678; see also Siou.x Honey Ass’ri, 672 F.3d at 1062 (holding that a complaint c‘require[s] more than labels and conclusions”). For these reasons, the court has determined that even if the August 10, 2017 Fifth Amended Complaint established jurisdiction as to the patent infringement allegations contained in 1111 96~97, 101-02, 106407, 111~12, 116~17, 121~»22, 126-27, 131-32, 136-37, 141-42, 146-47, and 151-52 of the Fifth Amended Complaint, the allegations contained therein failed to state a claim upon which relief may be granted and must be dismissed under RCFC 12(b)(6). e. Patent Infringement Allegations Concerning Broad Agency Announcements Must Be Dismissed Under RCFC 12(b)(6). The Government argues that patent infringement allegations29 concerning a DNDO BAA should be dismissed under RCFC 12(b)(6), because the Fifth Amended Complaint “fails to 29 The paragraphs in the Fifth Amended Complaint that include patent infringement allegations conceming the DNDO BAA are: 1111 161$7. These paragraphs are highlighted in red in the attached Court Exhibit B. 34 plausibly allege that the Government either used or manufactured any technologies described in the BAA.” 10/20/17 Gov’t Mot. at 22. In relevant part, the Fifth Amended Complaint alleges: Upon information and belief, the United States has infringed, and continues to infringe, at least claims 1, 2, and 4 of the ’497 Patent, claims 34, and 37 of the ’752 Patent, claims 13, and 14 ofthe ’439 Patent, and claims 119, 29, 18, 118, 12, 28, 25, 20, 124, 32, and 30 of the ’990 Patent as a current manufacturer, consumer, and/or user of the l”x2” Detection Device (DD) Samsung Galaxy s6 Smartphone; 2”X2” Detection Device (DD) Samsung Galaxy s6 Smartphone; NetSZ SmartShield G3 00 Radiation Detector Samsung Galaxy s6 Smartphone; NetSZ SmartShield G5 00 Radiation Detector Samsung Galaxy s6 Smartphone; and the Passport Systems Base Control Unit (BCV) “TOUGHBOOK 31” Panasonic Laptop: 2”X2” Detection Device (DD) Samsung Galaxy s6 Smartphone: In response to the [DNDO’s] BAA 09~102 Passport Systems, lnc. of Billerica, MA has developed a system of networked portable spectroscopic radiation detectors to improve the detection, localization, and identification of radiological threats. =l= >l= =I= NetSZ SmartShield G500 Radiation Detector Samsung Galaxy s6 Smartphone: Passport Systems Inc. G500 Radiation Detector alarms When radiation levels are detected; used as a standalone device or as part of a network; is the same size, form factor and Weight as a smartphone and easily added to the belt of safety personnel; is paired With a smartphone Via Bluetooth, and automatically joins a _ SmartShield Networl 1= =!= As a result of contracts With the [DNDO], Passport Systems, lnc., Panasonic Corporation, and the Samsung Group for the development and commercialization of the l”XZ” Detection Device (DD) Samsung Galaxy s6 Smartphone; 2”x2” Detection Device (DD) Samsung Galaxy s6 Smartphone; NetSZ SmartShield G300 Radiation Detector Samsung Galaxy s6 Smartphone; NetSZ SmartShield G500 Radiation Detector Samsung Galaxy s6 Smartphone; and the Passport Systems ' Base Control Unit (BCU) “TOUGHBOOK 31” Panasonic Laptop the United States j has used, authorized the use, and manufactured, without license or legal right, § Plaintiff’s inventions described in and covered by the ’497, ’439, ’752, and ’990 ‘ Patents. l 8/10/17 Am. Compl. 1111 161_62, 165, 167. But, the conclusion tha , “[a]s a result of contracts With the DNDO . . . the United States has used, authorized the use, and manufactured . . . Plaintiff’s inventions,”’ is not plausibly supported by factual allegations in the Fifth Amended Complaint. 8/10/17 Am. Compl. 11 167 35 (ernphasis added). Indeed, the Fifth Amended Complaint fails to identify a single “contract” With the DNDO. lnstead, it alleges only that the DNDO issued a BAA; a BAA, however, is not a “contract.” See 48 C.F.R. § 2.101(b) (defining a “BAA” as “a general announcement of an agency’s research interest including criteria for selecting proposals and soliciting the participation of all offerors capable of satisfying the Government’s needs”). Again, without more, the Fifth Amended Complaint has not met the requirements of Twombly and Iql)al. And, conclusory allegations that the Government used or authorized the use of the “Sarnsung Galaxy s6 Smartphone” in a manner that infringes Plaintiff’s patents are likewise insufficient, as such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Sionx Honey Ass ’n, 672 F.3d at 1062 (holding that a complaint “require[s] more than labels and conclusions”). For these reasons, the court has determined that the patent infringement allegations contained in 1111 161~67 of the August 10, 2017 Fifth Amended Complaint must be dismissed under RCFC 12(1))(6). f. Patent Infringement Allegations Concerning The ’033 Patent Must Be Disrnissed Under RCFC 12(b)(1). The Government argues that patent infringement allegations concerning the ’033 Patent should be dismissed under RCFC l?,(b)(l), because “this patent Was surrendered When it was reissued as [the ’891 Patent] and [the ’990 Patent].” 10/20/ 17 Gov’t Mot. at 22, An application for reissue of a patent constitutes an offer to surrender the patent. See 35 U.S.C. § 251(a) (“[T]he Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent[.]”). “The surrender of the original patent . . . take[s] effect upon the issue of the reissued patent.” 35 U.S.C. § 252. Therefore, as a matter of law, “[a]n original patent cannot be infringed once a reissue patent has issued, for the original patent is surrendered . . . [and t]he original claims are dead.” Seattle Box Co., Inc. v. Indnst Cratz`ng & Packing, Inc., 731 F.2d 818, 827 (Fed. Cir. 1984). In this case, on two occasions, Plaintiff applied for reissuance of the ’033 Patent via the ’837 Application and the ’853 Application, thereby offering to surrender the ’033 Patent in accordance With 35 U.S.C. § 251(a). 2/12/ 16 Am. Compl. Ex. G, H. Thereafter, the USPTO issued both of these reissue applications, as the ’89l Patent and the ’990 Patent, respectively, on January 1, 2013 and February 12, 2013. 2/12/16 Am. Compl. EX. G, H. As such, the ’033 Patent Was surrendered as of January 1, 2013, i.e., the earliest reissue date. See 35 U.S.C. § 252 (“The surrender of the original patent . . . take[s] effect upon the issue of the reissued patent.”). Therefore, the court does not have jurisdiction to adjudicate patent infringement allegations concerning the ’033 Patent, because the ’033 Patent is no longer a “patent of the United States.” See 35 U.S.C. §§ 251(a), 252; see also 28 U.S.C. § 1498(a) (requiring “an invention described in and covered by a patent of the United States”). 36 For these reasons, the court has determined that patent infringement allegations of the August 10, 2017 Fifth Amended Complaint concerning the ’033 Patent30 failed to satisfy Plaintiff’ s burden to establish jurisdiction under 28 U.S.C. § 1498(a). Accordingly, these allegations of the Fifth Amended Complaint must be dismissed under RCFC 12(b)(1). g. Patent Infringement Allegations Concerning Unissued Patent Applications And Pre-Issuance Use Or Manufacture Must Be Dismissed Under RCFC 12(b)(1). Fl`he Government argues that patent infringement allegations concerning the ’839 Application and pre-issuance use or manufacture of the ’439 Patent should be dismissed under RCFC 12(b)(1). 10/20/ 17 Gov’t Mot. at 23. The ’839 Application has not issued, nevertheless the Fifth Amended Complaint alleges that the Government “infringed, and continues to infringe” claims of the ’839 Application. 8/10/17 Am. Compl. ll 91. ln addition, the ’439 Patent issued on March 7, 2017, but the Fifth Amended Complaint alleges infringement of the ’439 Patent, based on Government “progranis” that were cancelled in April 2014, almost three years prior to issuance of the ’439 Patent. Compare 8/10/17 Arn. Compl. 1111 315-"16, with 10/20/ 17 Gov’t Mot. Ex. 22 (a June 10, 2014 United States Government Accountability Office Report, explaining the DHS’s decision to cancel the “BioWatch Gen~3” program in April 2014). In addition, the Fifth Amended Complaint alleges infringement of the ’439 Patent, based on NSF grants that expired prior to issuance of the ’439 Patent. Compare 8/10/ 17 Am. Compl. 1111 184_85, 199-200, 260461, 275-76, 280-81, 295~96, 305-06, with 10/20/17 Gov’t Mot. EX. 6-8, 10, 12. The court’s jurisdiction under 28 U.S.C. § 1498(a) is limited to allegations “against the [G]overnment arising out of post~issuance [G]overnment use [or manufacturej of an invention.” Hornback v. United States, 601 F.3d 1382, 1386 (Fed. Cir. 2010) (“"l`he language of section 1498(a) is mandatory, and therefore grants the [United States] Court of F ederal Claims exclusive jurisdiction to hear all claims against the [G]overnrnent arising out of post-issuance [G]overnment use of an invention.”). For these reasons, the court has determined that patent infringement allegations of the August 10, 2017 Fifth Amended Complaint concerning the ’839 Application31 and pre-issuance 30 Infringement of the ’033 Patent is alleged in jill 91-92 of the August 10, 2017 Fifth Amended Complaint, the relevant portions of which the court has highlighted in purple in the attached Court EXhibit B. These paragraphs, however, contain patent infringement allegations concerning other patents and therefore are dismissed to the extent they concern the ’033 Patent. 31 Infringement of the ’839 Application is alleged in 1111 91-92 of the August 10, 2017 Fifth Amended Complaint, the relevant portions of which the court also has highlighted in purple in the attached Court Exhibit B. These paragraphs, however, contain patent infringement allegations concerning other patents and therefore are dismissed to the extent they concern the ’839 Application. 37 use or manufacture of the ’439 Patent32 failed to satisfy Plaintiff’ s burden to establish jurisdiction under 28 U.S.C. § l498(a). Accordingly, these allegations of the Fifth Amended Complaint must be dismissed under RCFC 12(b)(l). h. Patent Infringement Allegations Concerning The ’761, ’280, And ’189 Patents Must Be Dismissed Under RCFC 12(b)(6). Finally, the Government argues that patent infringement allegations concerning the ’761, ’280, and ’189 Patents should be dismissed under RCFC 12(b)(6), because the Fifth Amended Complaint “alleges no infringement of any claims of these patents.” 10/20/ 17 Gov’t Mot. at 23. With regard to the ’761, ’280, and ’189 Patents, the Fifth Amended Complaint alleges: Upon information and belief, the United States has infringed, and continues to infringe, . . . Plaintiff’s 'l`angible Patented Claimed Inventions of . . . [the ’761, ’280, and ’189 Patents.] =l= =l l= As a result of contracts, agreements, procurements, and grants, for the development and commercialization of Plaintiff’s tangible patented claimed inventions, the United States . . . has used, authorized the use, manufactured and developed, without license or legal right, or authorization and consent, Plaintiff’ s tangible patented claimed inventions as described in and covered by the Plaintiff’s . . . ’761, ’280, . . . [and] ’189 . . . [P]atents. 8/10/17 Am. Compl. 1111 9l~»92. To survive a motion to dismiss under RCFC 12(b)(6), “[t]here must be some allegation of specific services or products of the defendants which are being accused.” Addicfion and Detoxificarion Inst. L.L_C. v. Carpcnfer, 620 F. App’x 934, 937 (Fed. Cir. 2015). The Fifth Amended Complaint, however, does not contain any allegation about how the ’761, ’280, and ’189 Patents Were infringed and by What action of the Government 32 Infringement of the ’439 Patent is alleged in 1111 91-92, 96-97, 101-02, 106-07, 111-12, 116-17, 121-22, 126~27, 131~32, 136~37, 141#42, 146»47, 151-52, 156~57, 161*67, 171~72, 176-80, 184-85, 189-90, 194-95, 199_200, 204-05, 209»10, 214-»15, 2l9m20, 224»26, 230-31, 235~36, 240~41, 245-46, 250~51, 255-56, 260-61, 265-66, 270-71, 275-76, 280-81, 285-86, 290_91, 295_96, 300-01, 305~06, 3l0~11, 315~16, 320~21, 325~26, 330-31, 335~36, 340-41, 345~46, 350~»51, 355-56, 360-61, and 365-66 of the August 10, 2017 Fifth Amended Complaint, the relevant portions of which the court has highlighted in pink in the attached Court Exhibit B, if not otherwise highlighted in a difference color. These paragraphs, however, contain patent infringement allegations concerning other patents and therefore are dismissed to the extent they concern the ’439 Patent. lf Plaintiff can identify post-issuance activity incorporated Within these paragraphs that is not otherwise dismissed, the court Will reconsider dismissal of those relevant portions. 38 For these reasons, the court has determined that the patent infringement allegations of the August 10, 2017 Fifth Amended Complaint concerning the ’761, ’280, and ’189 Patents must be dismissed under RCFC 12(b)(6).33 V. CONCLUSION. For the reasons discussed herein, the Government’s October 20, 2017 Motion For Partial Dismissal, pursuant to RCFC 12(b)(1) and 12(b)(6), is granted-in-part and denied-in-part. Plaintiff`s November 17, 2017 Motion For Leave To File A Motion For Summary Judgment, is denied, as the Government “has not had an opportunity to make full discovery.” Celofex Corp. v. Catren‘, 477 U.S. 317, 326 (1986). The court will convene a telephone status conference Within the next two Weeks to identify What, if any, patent infringement allegations are viable and may be adj udicated, and how the parties propose proceeding IT IS SO OR])ERED. Chief Judge 33 Infringement of the ’761 , ’280, and ’ 189 Patents is alleged in 1111 91_92 of the August 10, 2017 Fifth Amended Complaint, the relevant portions of Which the court also has highlighted in purple in the attached Court Exhibit B. These paragraphs, however, contain patent infringement allegations concerning other patents and therefore are dismissed to the extent they concern the ’761, ’280, and ’189 Patents. 39