NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5059
DR. PO KEE WONG,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Dr. Po Kee Wong, of Silver Spring, Maryland, pro se.
Conrad J. DeWitte, Jr., Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were Tony West, Assistant Attorney General, and John
Fargo, Director.
Appealed from: United States Court of Federal Claims
Judge Lawrence M. Baskir
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2009-5059
DR. PO KEE WONG,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims
in 08-CV-395, Judge Lawrence M. Baskir.
__________________________
DECIDED: July 9, 2009
__________________________
Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.
PER CURIAM.
Dr. Po Kee Wong appeals from the final judgment of the United States Court of
Federal Claims dismissing his complaint for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be granted. Dr. Po Kee Wong v. United
States, No. 08-CV-395 (Fed. Cl. Feb. 25, 2009). For the reasons set forth below, we
affirm.
I
Dr. Wong, a former Boston public school teacher, is an inventor. He holds
several patents including U.S. Patent No. 5,848,377 (‘377) (Wong’s Angles to
Determine Trajectories of Objects), U.S. Patent No. 5,084,232 (‘232) (Trajectory Solid
Angle’s Impacts to Physics and High Technologies), and U.S. Patent No. 6,430,516 B1
(‘516) (High Speed Rotating Shafts and Methods of Characterizing Same). He also
prosecuted patent application Serial No. 08/980,657 (‘657), entitled “Uniquely-Corrected
System and Method to Compute High Power Functions.” The Patent Office finally
rejected that application, and Dr. Wong appealed the rejection to this court. We
affirmed the rejection. In re Po Kee Wong, 80 Fed. App'x. 107, 108 (Fed. Cir. 2003). In
2004, the Patent Office issued a notice of abandonment regarding his application, and
Dr. Wong’s attempt to revive the application failed in 2005. He sought review in this
court, but we dismissed his appeal for want of jurisdiction because review of the denial
of a petition to revive lies in the United States District Court. See In re Po Kee Wong,
188 Fed. App'x. 981 (Fed. Cir. 2006).
II
Dr. Wong filed the complaint in this case pro se on May 30, 2008. The complaint
comprised a cover sheet, certificates of service and 106 pages of correspondence
between Dr. Wong and employees of various government agencies. On June 24, 2008,
the government moved to dismiss the complaint under Rules 12(b)(1) (lack of subject
matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief may be
granted).
On January 12, 2009, the Court of Federal Claims issued an order requiring
Dr. Wong to show cause why his complaint should not be dismissed as requested by
the government. The court noted that it holds a pro se plaintiff to “less stringent
standards than formal pleadings drafted by lawyers,” citing Haines v. Kerner, 404 U.S.
2009-5059 2
519, 520 (1972), and it construed the complaint liberally to articulate the causes of
action pleaded by Dr. Wong in his complaint. The Court of Federal Claims found three
possible separate causes of action stated in the complaint.
First, Dr. Wong asserted patent infringement by the government of his ‘232, ‘377
and ‘516 patents. The Court of Federal Claims noted that the correspondence filed with
the complaint showed unsuccessful attempts by Dr. Wong to win licenses from various
agencies to practice his patents, but the complaint did not assert any facts that would
establish use or manufacture by the government of the asserted patents. However,
rather than dismiss the patent claims for failure to state a claim under Rule 12(b)(6), as
the government then sought, the Court of Federal Claims gave Dr. Wong another
opportunity to make his patent case in response to the show cause order.
Second, Dr. Wong’s complaint sought relief regarding his ‘657 application, which,
as noted above, was finally rejected and abandoned. In his complaint, he urged the
Court of Federal Claims to declare the ‘657 a meritorious application and to order the
Solicitor General to take steps to achieve issuance of a patent. The show cause order
noted that the Court of Federal Claims has limited authority to issue declaratory
judgments, and that Dr. Wong needed to point to a money-mandating provision of law
giving him a substantive right to permit the court to revive his ‘657 application.
Otherwise, the Court of Federal Claims stated that it would have to dismiss this aspect
of the complaint for want of jurisdiction.
Third, Dr. Wong sought relief against the Boston Retirement Board, which
allegedly had denied him certain employment credits. His previous attempts to obtain
such relief in the Massachusetts state courts had failed. See Wong v. Boston
2009-5059 3
Retirement Bd., 861 N.E. 2d 420, 421 (Mass. 2007). In response to this aspect of the
complaint, the Court of Federal Claims stated that it was unaware of any authority that
would permit it to award monetary relief to a state employee alleging wrongly withheld
employment credits. Notwithstanding issues of res judicata, the Court of Federal
Claims gave Dr. Wong another chance to demonstrate why this aspect of the complaint
should not be dismissed for want of jurisdiction.
In response to the show cause order, Dr. Wong averred that his patent claims
would be shown to have merit if the court would issue subpoenas to “the parties of
concerns.” With regard to the ‘657 application issue, Dr. Wong stated that other
applications (apparently related to the ‘657) were pending at the Patent Office. He
provided no specific information with regard to his Boston Retirement Board claim.
III
On February 25, 2009, the Court of Federal Claims issued its decision on the
show cause order. The court concluded that Dr. Wong had failed to produce any facts
upon which he could sustain his allegation that the government had infringed his
patents. Accordingly, the court dismissed this claim under Rule 12(b)(6).
Next, the court noted that Dr. Wong’s prayer for relief with regard to the ‘657
appliction fell short, because he could not identify a money-mandating provision of law
giving him a substantive right to the relief sought. The court rejected this aspect of the
complaint under Rule 12(b)(1). Finally, the court rejected Dr. Wong’s claim for withheld
state employment credits for the same reason: lack of a showing of any provision of law
that would permit the court to grant the relief sought. Thus, the court granted the
government’s motion to dismiss the complaint.
2009-5059 4
IV
Dr. Wong timely appealed to this court, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(3). We review a dismissal under Rules 12(b)(1) and (6) as an issue of law,
leaving no deference to the trial court. See Boyle v. United States, 200 F.3d 1369, 1372
(Fed. Cir. 2000). We accept the allegations in a complaint as true, construing them
favorably to the plaintiff.
With regard to Dr. Wong’s patent infringement case, the facts at most show that
he does own patents, and that he sought to license them to various government
agencies, and that the government would need to construct facilities before it could
practice the claims of the patents. Without more, we must affirm the dismissal of the
patent infringement claims.
As for Dr. Wong’s request that the court bring the ‘657 patent application back to
successful life, and his request for relief from the state agency, we agree that Dr. Wong
has failed to meet his burden to show jurisdiction in the Court of Federal Claims.
CONCLUSION
For the foregoing reasons, we affirm the dismissal of Dr. Wong’s complaint.
COSTS
Each party shall bear its own costs.
2009-5059 5