NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-1377
JAMES H. CLARK,
Plaintiff-Appellant,
v.
FLOYD CRUES, STEPHEN WARMACK, SHANE HOPPER,
SYLVIA SHEAD, MELVIN GUNTER, ST. LOUIS PUBLIC SCHOOL DISTRICT,
BOARD OF EDUCATION OF THE CITY OF ST. LOUIS,
DARNETTA CLINKSCALE, VINCENT SCHOEMEHL, RONALD JACKSON,
ROBERT ARCHIBALD, and KENNETH C. BROSTRON,
Defendants-Appellees.
James H. Clark, of St. Louis, Missouri, pro se.
James C. Hetlage, Lashly & Baer, P.C., of St. Louis, Missouri, for defendants-
appellees.
Appealed from: United States District Court for the Eastern District of Missouri
Judge Jean C. Hamilton
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-1377
JAMES H. CLARK,
Plaintiff-Appellant,
v.
FLOYD CRUES, STEPHEN WARMACK, SHANE HOPPER,
SYLVIA SHEAD, MELVIN GUNTER, ST. LOUIS PUBLIC SCHOOL DISTRICT,
BOARD OF EDUCATION OF THE CITY OF ST. LOUIS,
DARNETTA CLINKSCALE, VINCENT SCHOEMEHL, RONALD JACKSON,
ROBERT ARCHIBALD, and KENNETH C. BROSTRON,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Missouri in case
no. 4:05-CV-1344, Judge Jean C. Hamilton.
__________________________
DECIDED: January 8, 2008
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
James H. Clark (“Clark”) appeals from a final judgment of the United States
District Court for the Eastern District of Missouri. Clark v. Crues, No. 4:05-CV-1344
JCH, slip op. (E.D. Mo. Mar. 23, 2007) (“Memorandum & Order”). In that decision, the
court granted summary judgment to the defendants, dismissing Clark’s claims of
inducement of patent infringement, willful patent infringement, copyright infringement,
and conspiracy in violation of 42 U.S.C. §§ 1983 and 1985, and declining to exercise
supplemental jurisdiction over Clark’s remaining claims. Because the record presents
no genuine issue of material fact and the defendants are entitled to judgment as a
matter of law, see Fed. R. Civ. P. 56(c), we affirm.
This appeal concerns a “behavioral modification program,” known as the “Out of
Area Program,” that Clark claims he developed and implemented while he was
employed by the St. Louis, Missouri public school system as a probationary teacher.
The Out of Area Program consists of a set of written materials intended for use by
teachers and other school personnel to help control and modify disruptive behavior by
students. After Clark’s employment was terminated for reasons that the defendants
assert are unrelated to this appeal, Clark sued the defendants, asserting, inter alia,
patent and copyright infringement. On appeal, Clark challenges the district court’s
dismissal of his patent and copyright claims. He also alleges that it was an improper
conflict of interest for Defendant Kenneth Brostron to serve as counsel for his co-
defendants, that the district court erroneously failed to consider claims against an entity
known as “Board of Education of the City of St. Louis (former),” that the district court
erroneously docketed certain pleadings, that the district court failed to communicate
adequately with him, and that the defendants tortiously interfered with his business
relationships.
As to the copyright claim, the district court held that the “Out of Area Program
constitutes a business idea, excluded from copyright protection under 17 U.S.C.
§ 102(b).” Memorandum & Order at 10. We agree. The Complaint alleges that the
defendants “used the same concept referencing Hall Pass procedures” as in the Out of
Area Program. See id. at 9. Such general concepts and ideas are beyond the purview
of copyright law. See Mazer v. Stein, 347 U.S. 201, 217 (1954) (“[A] copyright gives no
2007-1377 2
exclusive right to the art disclosed; protection is given only to the expression of the
idea—not the idea itself.”). At best, Clark alleges that his hall pass, Appellant’s Br.
attach. 24d, and a hall pass that was used in the 2004–05 school year at Roosevelt
High School, id. attach. 24e, share language that restricts the use of hall passes during
the first and last ten minutes of class. However, the passes are not otherwise alike, and
the district court correctly concluded that this limited use of similar functional language
does not constitute copyright infringement even if, as Clark alleges, the defendants
deliberately copied Clark’s ideas. See CMM Cable Rep, Inc. v. Ocean Coast Props.,
Inc., 97 F.3d 1504, 1519–20 (1st Cir. 1996) (denying copyright protection to phrases
such as “clock in” used in a radio promotional contest as an employment metaphor, and
stating that “copyright law denies protection to ‘fragmentary words and phrases’ and to
‘forms of expression dictated solely at functional considerations’ on the grounds that
these materials do not exhibit the minimal level of creativity necessary to warrant
copyright protection”).
As to the patent claims, the district court held that Clark had failed to provide any
evidence that he had been issued a U.S. patent. Clark does not challenge this
conclusion on appeal, but he argues that the district court should have stayed his
infringement suit while the U.S. Patent and Trademark Office considered his patent
application. Clark is incorrect; he can maintain an action for patent infringement only if
and when he has been issued a patent. See 35 U.S.C. § 271(a); Amgen, Inc. v.
Genetics Inst., Inc., 98 F.3d 1328, 1332 (Fed. Cir. 1996) (“[O]f course suit can not be
brought for infringement of a patent that has not issued.”). If Clark ultimately succeeds
in his efforts to obtain a patent, he may then be in a position to bring a civil action
2007-1377 3
regarding acts of alleged infringement occurring after the patent issues, but even then
the activities of the defendants prior to issuance of the patent will not constitute acts of
infringement. Accordingly, there is no basis on which to delay proceedings in this case.
Clark’s remaining arguments are similarly meritless. Clark does not provide any
legal basis for his allegation that it is improper for Brostron to represent the other
defendants in the pre-trial phase of this case. Additionally, we see no error in the
district court’s treatment of the Board of Education of the City of St. Louis as the proper
name for the entity that manages the St. Louis public schools or in the district court’s
docketing of Clark’s pleadings. As to the latter, if a docketing error did occur, there is no
indication that it affected the outcome of this case or otherwise harmed Clark. We also
see no error in the district court’s handling of communications with Clark, and Clark
does not allege that he was prejudiced by any failure to receive orders from the district
court.
Finally, Clark argues that the defendants tortiously interfered with his business
relationships and attorney-client relationships. These claims arise under state law. The
district court dismissed Clark’s state-law claims without prejudice under 28 U.S.C.
§ 1367(c), which gives a district court the authority to decline jurisdiction over state-law
claims if it “has dismissed all claims over which it has original jurisdiction.” In this case,
all of the claims arising under federal law have been dismissed, and the district court
lacks original jurisdiction over the claims arising under state law. Because the district
court correctly dismissed Clark’s federal-law claims, we perceive no abuse of discretion
in the district court’s decision to dismiss Clark’s state-law claims without prejudice.
Accordingly, we affirm the judgment of the district court in all respects.
2007-1377 4
COSTS
No costs.
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