Case 2:21-cv-02512-JPM-tmp Document 25 Filed 09/19/22 Page 1 of 14 PageID 513
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`
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`MARTIN DAVID HOYLE and B.E.
`TECHNOLOGY, LLC,
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`Plaintiffs,
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` Case No. 2:21-cv-02512-JPM-tmp
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`v.
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`MICHELLE K. LEE, JAMES DONALD SMITH,
`JAMES T. MOORE, SALLY C. MEDLEY,
`KALYAN K. DESHPANDE, LYNNE E.
`PETTIGREW, and UNKNOWN OFFICERS,
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`
`
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`Defendants.
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`
`
`
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`ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
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`Before the Court is Defendants’ Motion to Dismiss the Complaint and Memorandum of
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`Law, filed on November 23, 2021. (ECF No. 19.) For the reasons discussed below, Defendants’
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`Motion to Dismiss is GRANTED.
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`I.
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`BACKGROUND
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`a. Procedural Background
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`Plaintiffs filed their Complaint on August 9, 2021. (ECF No. 1.) Defendants filed this
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`Motion to Dismiss on November 23, 2021. (ECF No. 19.) Plaintiffs filed a Response in
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`Opposition on January 21, 2022. (ECF No. 22.) Defendants filed a Reply on February 11, 2022.
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`(ECF No. 23.) On June 13, 2022, Defendants also filed a Notice of Supplemental Authority. (ECF
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`No. 24.)
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`1
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`b. Factual Background
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`Plaintiffs allege that the Defendants in this suit violated Plaintiffs’ constitutional right to
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`due process under the Fifth Amendment and seek compensatory and punitive damages against
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`them pursuant to Bivens and its progeny. (ECF No. 1 ¶¶ 86–94.) Plaintiffs make the following
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`factual allegations in their Complaint, which they contend amount to a procedural due process
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`violation that can be remedied with a Bivens suit. Plaintiffs’ patent portfolio includes two relevant
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`patents to the issues here: U.S. Patent No. 6,628,314 (the “’314 Patent) and U.S. Patent No.
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`6,771,290 (the “’290 Patent). (Id. ¶ 21.) In September 2012, “B.E. Technology filed patent
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`infringement actions against several well-known technology companies—including Google,
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`Facebook, Microsoft, Samsung, and others—to enforce its rights in the ’314 and the ’290 patents.”
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`(Id. ¶ 29.) “Google and all other defendants in those actions filed petitions seeking to challenge
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`the validity of the ’314 and the ’290 patents in IPR proceedings—and then moved to stay the
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`district court proceedings until the PTAB had ruled upon the validity of the underlying patents.”
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`(Id. ¶ 35.) “The same three-judge panel—Sally C. Medley, Kalyan K. Deshpande, and Lynne E.
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`Pettigrew” presided over all seven of the IPR proceedings related to these two patents, and this
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`“panel proceeded to rule against B.E. Technology in each of those cases—ultimately invalidating
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`both patents as either ‘anticipated by’ and/or ‘obvious,’ in light of prior art.” (Id. ¶ 36.)
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`Following the panel’s decisions, B.E. Technology appealed to the Federal Circuit, which
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`“then affirmed [the] PTAB’s reasoning in two subsequent unpublished decisions.” (Id. ¶ 37.)
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`“Based upon the limited facts known by B.E. Technology and its counsel at that time, B.E.
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`Technology did not file petitions for a writ of certiorari to the Supreme Court in either case.” (Id.
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`¶ 38.)
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`2
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`“Starting in or around late 2017, various news outlets, blogs, and other websites began to
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`publish scandalous revelations about the USPTO’s inner machinations, which raised serious
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`questions about the constitutionality of IPR proceedings before the PTAB.” (Id. ¶ 39.) “[T]he
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`USPTO eventually admitted that the Director and Chief Administrative Patent Judge had routinely
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`employed various mechanisms ‘to indirectly influence’ the course of IPR proceedings before the
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`PTAB—such as by ‘designat[ing] [certain] APJs [that were presumably] predisposed to decide a
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`case in his preferred manner.’” (Id. ¶ 41.) (quoting United States v. Arthrex, Inc., 141 S. Ct. 1970,
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`1972 (2021).)
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`Additionally, “Plaintiffs learned that while APJs’ base salaries are supposed to be subject
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`to a statutory cap, the USPTO had implemented a scheme of annual bonus payments, premised
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`upon a points-based system of ‘decisional units’ associated with the various types of work
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`assignments that APJs undertake and complete within each calendar year” which “created
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`particularly problematic incentives in the context of IPR proceedings.” (Id. ¶¶ 44–45.)
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`Specifically, “the compensation structure that was subsequently implemented by the USPTO
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`provides substantial incentives for APJs to grant institution” and the USPTO implemented
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`“policies that expressly discouraged and penalized the issuance of dissenting opinions.” (Id. ¶¶
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`47, 51.)
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`“[T]he Director of the USPTO at all times relevant to the IPR proceedings discussed herein,
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`was . . . Defendant Lee—who had previously served as the Head of Patents and Patent Strategy at
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`Google.” (Id. ¶ 55.) Mr. Hoyle also discovered that:
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`APJ Medley had presided over approximately 64 IPR proceedings and had ruled in
`favor of the petitioners by cancelling the challenged patents in 100% of those
`proceedings. APJ Deshpande had likewise cancelled the challenged patents in
`100% of the IPR proceedings over which he had presided as of 2015. And APJ
`Pettigrew also had a solid cancellation rate of 97% in all of the IPR proceedings
`over which she had presided as of 2015.
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`3
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`Upon information and belief, USPTO leadership was well-aware of these
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`three APJs’ particular propensity for ruling against patent owners, and specifically
`chose them (out of approximately 215 APJs who were employed by the USPTO at
`the time) to preside over B.E. Technology’s IPR proceedings for that reason.
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`Mr. Hoyle also learned that all three of the APJs assigned to B.E.
`Technology’s IPR proceedings received substantial bonus payments that year.
`Specifically, APJ Deshpande (who authored the four final written decisions
`cancelling the ’314 patent in 2015) received a bonus payment in the amount of
`$25,220 that year; APJ Pettigrew (who authored the three final written decisions
`invalidating the ’290 patent in 2015) received a bonus in the amount of $18,520
`that year; and APJ Medley (who joined in each of those decisions) received a bonus
`in the amount of $25,976 that year.
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`(Id. ¶ 57–59.)
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`“Thereafter, Mr. Hoyle discovered additional facts tending to suggest that USPTO
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`leadership had specifically targeted B.E. Technology for enhanced scrutiny and adverse actions
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`during this time frame.” (Id. ¶ 60.) “Mr. Hoyle learned that some of B.E. Technology’s other
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`patent applications (unrelated to the ’314 and the ’290 patents discussed herein) had been flagged
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`for enhanced scrutiny pursuant to the USPTO’s surreptitious Sensitive Application Warning
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`System (‘SAWS’) program—which operated in secret from 1994 until approximately 2014.” (Id.)
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`“Although Plaintiffs did not know it at the time, the assistant patent examiner who had been
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`assigned to the patent applications filed by B.E. Technology actually admitted . . . that she had
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`been instructed to flag all patent applications relating to targeted advertising technologies . . . for
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`increased scrutiny under the SAWS program during her tenure at the USPTO.” (Id. ¶ 61.)
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`“[W]hile the SAWS program obviously did not preclude the issuance of the ’314 and the ’290
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`patents, these revelations only served to confirm Plaintiffs’ suspicions and concerns about the
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`USPTO leadership’s pervasive structural bias and secret internal policies favoring large industry
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`players . . ., and its corresponding animus towards independent inventors like Plaintiffs.” (Id.
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`¶ 65.)
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`4
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`Mr. Hoyle next alleges further facts that he claims he became aware of through Mr. Ron
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`D. Katznelson’s paper in draft form, The Pecuniary Interests of PTAB Judges: Empirical Analysis
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`Relating Bonus Awards to Decisions in AIA Trials. (Id. ¶ 69.) The report “identified a recruitment
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`brochure published by the USPTO . . . which advertised the availability of ‘gain-sharing bonuses’
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`as a benefit available to PTAB judges—thereby suggesting that APJs would receive a share in the
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`revenues that they generated for the agency by instituting IPR proceedings.” (Id. ¶ 70.) “The
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`Katznelson Report also revealed—based upon documents obtained through FOIA requests—the
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`existence of a secret internal review committee within the PTAB called the AIA Review
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`Committee (‘ARC’), which was apparently responsible for reviewing certain final written decision
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`drafts prior to their issuance, and providing suggestive guidance and/or edits on such decisions.”
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`(Id. ¶ 71.) “[S]ince the identity of persons serving on this secret extra-panel review committee
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`was never revealed, Plaintiffs were ultimately deprived of their right to know who else might have
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`contributed, influenced, or made the ultimate decision in B.E. Technology’s IPR proceedings—or
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`whether those persons . . . [had] clear conflicts-of-interest.” (Id.)
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`Plaintiffs contend that these facts, taken together, “amount to a particularly clear and
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`egregious violation of Plaintiffs’ rights and leave no room for debate as to the unconstitutionality
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`of those proceedings.” (Id. ¶ 74.) Plaintiffs contend that each of the named Defendants “was
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`either individually responsible for, involved in, or otherwise complicit in the actions that resulted
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`in the violation of Plaintiffs’ constitutional rights.” (Id. ¶ 75.)
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that “fail[s] to
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`state a claim upon which relief can be granted.” A Rule 12(b)(6) motion permits the “defendant
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`to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged
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`5
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`Case 2:21-cv-02512-JPM-tmp Document 25 Filed 09/19/22 Page 6 of 14 PageID 518
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`in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama
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`v. Dickson Cty., 814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss only tests whether the
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`plaintiff has pled a cognizable claim and allows the court to dismiss meritless cases which would
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`waste judicial resources and result in unnecessary discovery. Brown v. City of Memphis, 440 F.
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`Supp. 2d 868, 872 (W.D. Tenn. 2006).
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`When evaluating a motion to dismiss for failure to state a claim, the Court must determine
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`whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief
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`that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). If a court decides that the claim is not plausible, the case
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`may be dismissed at the pleading stage. Id. at 679. “[A] formulaic recitation of the elements of a
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`cause of action will not do.” Twombly, 550 U.S. at 555. The “[f]actual allegations must be enough
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`to raise a right to relief above [a] speculative level.” Ass’n of Cleveland Fire Fighters v. City of
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`Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555). A claim is
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`plausible on its face if “the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
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`678 (citing Twombly, 550 U.S. at 556). A complaint need not contain detailed factual allegations.
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`Twombly, 550 U.S. at 570. A plaintiff without facts who is “armed with nothing more than
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`conclusions,” however, cannot “unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79; Green
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`v. Mut. of Omaha Ins. Co., No. 10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011),
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`aff’d, 481 F. App’x 252 (6th Cir. 2012).
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`
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`Assessing the facial sufficiency of a complaint ordinarily must be undertaken without
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`resorting to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102,
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`1104 (6th Cir. 2010). “[D]ocuments attached to the pleadings become part of the pleadings and
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`6
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`may be considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union Ins.
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`Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)); see also Koubriti v.
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`Convertino, 593 F.3d 459, 463 n.1 (6th Cir. 2010). Even if a document is not attached to a
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`complaint or answer, “when a document is referred to in the pleadings and is integral to the claims,
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`it may be considered without converting a motion to dismiss into one for summary judgment.”
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`Commercial Money Ctr., 508 F.3d at 335–36. When evaluating a motion to dismiss, the Court
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`may also take judicial notice of pertinent matters of public record, including bankruptcy filings.
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`Signature Combs, Inc. v. United States, 253 F. Supp. 2d 1028, 1040 n.5 (W.D. Tenn. 2003).
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`III. ANALYSIS
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`A.
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`Plaintiffs Have Failed to State a Plausible Bivens Cause of Action.
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`In Bivens, the Supreme Court held that “it would enforce a damages remedy to compensate
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`persons injured by federal officers who violated the prohibition against unreasonable search and
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`seizures.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) (citing Bivens v. Six Unknown Named
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`Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971)). Since then, the Supreme Court
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`has recognized two other constitutional violations that have an implied cause of action like in
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`Bivens:
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`In Davis v. Passman, 442 U.S. 288, 99 S. Ct. 2264, 60 L.Ed.2d 846 (1979), an
`administrative assistant sued a Congressman for firing her because she was a
`woman. The Court held that the Fifth Amendment Due Process Clause gave her a
`damages remedy for gender discrimination. Id. at 248–49, 99 S. Ct. 2264. And in
`Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L.Ed.2d 15 (1980), a prisoner’s
`estate sued federal jailers for failing to treat the prisoner’s asthma. The Court held
`that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a
`damages remedy for failure to provide adequate medical treatment. See id. at 19,
`100 S. Ct. 1468. These three cases—Bivens, Davis, and Carlson—represent the
`only instances in which the Court has approved of an implied damages remedy
`under the Constitution itself.
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`Ziglar, 137 S. Ct. at 1854–55.
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`Since these three cases, the Supreme Court “has made clear that expanding the Bivens
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`remedy is now a ‘disfavored’ judicial activity” and has refused to extend Bivens to any new context
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`“for the past 30 years.” Id. at 1857. The Supreme Court has held that the following is the proper
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`test for determining whether a case presents a new context for Bivens:
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`If the case is different in a meaningful way from previous Bivens cases decided by
`this Court, then the context is new. Without endeavoring to create an exhaustive
`list of differences that are meaningful enough to make a given context a new one,
`some examples might prove instructive. A case might differ in a meaningful way
`because of the rank of the officers involved; the constitutional right at issue; the
`generality or specificity of the official action; the extent of judicial guidance as to
`how an officer should respond to the problem or emergency to be confronted; the
`statutory or other legal mandate under which the officer was operating; the risk of
`disruptive intrusion by the Judiciary into the functioning of other branches; or the
`presence of potential special factors that previous Bivens cases did not consider.
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`Id. at 1859–60.
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`“[I]f a claim arises in a new context, a Bivens remedy is unavailable if there are ‘special
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`factors’ indicating that the Judiciary is at least arguably less equipped than Congress ‘to weigh the
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`costs and benefits of allowing a damages action to proceed.’” Egbert v. Boule, 142 S. Ct. 1793,
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`1803 (2022) (quoting Ziglar, 137 S. Ct. at 1858). While the Supreme Court “has not defined the
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`phrase ‘special factors counselling hesitation’ . . ., the inquiry must concentrate on whether the
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`Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs
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`and benefits of allowing a damages action to proceed.” Ziglar, 137 S. Ct. at 1857–58. The
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`following are examples of what might “cause a court to hesitate” in extending Bivens:
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`It is not necessarily a judicial function to establish whole categories of cases in
`which federal officers must defend against personal liability claims in the complex
`sphere of litigation, with all of its burdens on some and benefits to others. It is true
`that, if equitable remedies prove insufficient, a damages remedy might be necessary
`to redress past harm and deter future violations. Yet the decision to recognize a
`damages remedy requires an assessment of its impact on governmental operations
`systemwide. Those matters include the burdens on Government employees who
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`8
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`are sued personally, as well as the projected costs and consequences to the
`Government itself when the tort and monetary liability mechanisms of the legal
`system are used to bring about the proper formulation and implementation of public
`policies. These and other considerations may make it less probable that Congress
`would want the Judiciary to entertain a damages suit in a given case.
`Sometimes there will be doubt because the case arises in a context in which
`Congress has designed its regulatory authority in a guarded way, making it less
`likely that Congress would want the Judiciary to interfere. . . . And sometimes there
`will be doubt because some other feature of a case—difficult to predict in
`advance—causes a court to pause before acting without express congressional
`authorization. In sum, if there are sound reasons to think Congress might doubt the
`efficacy or necessity of a damages remedy as part of the system for enforcing the
`law and correcting a wrong, the courts must refrain from creating the remedy in
`order to respect the role of Congress in determining the nature and extent of federal-
`court jurisdiction under Article III.
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`Id. at 1858. “Finally, our cases hold that that a court may not fashion a Bivens remedy if Congress
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`already has provided, or has authorized the Executive to provide, ‘an alternative remedial
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`structure,’” and “[i]f there are alternative remedial structures in place, ‘that alone,’ like any special
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`factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.’”
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`Egbert, 142 S. Ct. at 1804 (quoting Ziglar, 137 S. Ct. at 1858).
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`Here, Defendants contend that Plaintiffs’ Complaint should be dismissed because Plaintiffs
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`“seek an improper extension of Bivens to this context.” (ECF No. 19 at PageID 112.) First,
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`Defendants contend that this is a new context because “Plaintiffs’ sweeping challenge to the IPR
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`system involves higher-ranking defendants in adjudicative positions, distinct patent-related legal
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`mandates, and claims of greater generality than those implicated by Bivens’s law enforcement
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`search-and-seizure context, Carlson’s prison medical care context, and Davis’s workplace sex
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`discrimination context.” (Id. at PageID 114.)
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`Defendants contend that, at the next step in the analysis, there are special factors counseling
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`hesitation because “Plaintiffs’ claims . . . plainly challenge high-level governmental policy-
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`9
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`making.” (Id. at PageID 115.) Additionally, Defendants contend that, “because plaintiffs assert
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`that defendants had improper motives for implementing the contested policies and speculate about
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`each official’s role and intent in establishing them, . . . the litigation of their claims would require
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`unacceptably burdensome inquiries into sensitive government deliberations about those policies
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`and officials’ motives for creating them.” (Id.) Defendants assert that “[a]nother special factor is
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`Congress’s silence on a damages remedy in light of its intense interest in patent rights and
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`regulation.” (Id.) Defendants contend that “[d]espite its sustained attention to patent holders’
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`constitutional rights, other stakeholders’ interests, and the public interest, Congress did not provide
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`patent holders with a damages remedy for due process violations in the IPR process.” (Id. at
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`PageID 116.) Finally, Defendants contend that “there should be no Bivens remedy here because
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`there are alternative means available to protect the due process interests underlying plaintiffs’
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`claims,” such as “appealing to the Federal Circuit,” “su[ing] for an injunction against those
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`policies”, and potentially “su[ing] the government for damages under the Federal Tort Claims Act
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`(‘FTCA’) based on USPTO officials’ tortious deprivation of the patent holder’s property in the
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`IPR process.” (Id. at PageID 117.)
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`In response, Plaintiffs contend that they “have quite clearly alleged that Defendants’
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`conduct deprived them of a ‘constitutionally protected’ property interest without due process of
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`law.” (ECF No. 22 at PageID 435.) Plaintiffs assert that “Defendants’ contention that this case
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`seeks an improper extension of Bivens ignores well-established historical precedent, in a long line
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`of cases, recognizing the availability of an implied constitutional cause of action under Bivens for
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`claims arising under the Due Process Clause of the Fifth Amendment.” (Id. at PageID 439.)
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`Plaintiffs contend that Davis stands for the proposition that if a Bivens cause of action is brought
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`under the Fifth Amendment, it is not a new context. (Id.) Plaintiffs further contend that, unlike in
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`Schweiker v. Chilicky, where the Supreme Court declined to extend Bivens to a procedural due
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`process violation for disability benefits because the Social Security Act “provided an adequate
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`mechanism for redress,” the Plaintiffs here “ha[d] no alternative remedy for seeking redress.” (Id.
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`at PageID 439–40.) (citing Schweiker, 487 U.S. 412 (1998).) Plaintiffs then summarize other due
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`process Bivens cases which were ultimately dismissed because the plaintiffs in those cases had
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`access to other avenues to seek relief. (Id. at PageID 442–43.) (summarizing Left Fork Min. Co.,
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`Inc. v. Hooker, 775 F.3d 768 (6th Cir. 2014); Haines v. Fed. Motor Carrier Safety Admin., 814
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`F.3d 417 (6th Cir. 2016).) Plaintiffs contend that their appeal to the Federal Circuit was not a
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`separate avenue to seek relief because they did not know about these alleged due process violations
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`at the time and thus, “Plaintiffs were deprived of any opportunity to raise these issues and their
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`constitutional implications in their appeal to the Federal Circuit.” (Id. at PageID 444.) Finally,
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`Plaintiffs contend that there are not any special factors counseling hesitation in the event that the
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`Court finds that this is a new context for Bivens. (Id. at PageID 445–46.)
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`In reply, Defendants contend that Plaintiffs are sidestepping Ziglar by “ask[ing] this Court
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`to follow the discarded analysis of the Supreme Court’s early Bivens decisions.” (ECF No. 23 at
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`PageID 468.) Defendants also dispute Plaintiffs’ contention that there are no special factors here.
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`Defendants contend that even “outside the national security context, the courts have also concluded
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`that the possibility of intrusive discovery into high-ranking officials’ deliberations counsels
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`hesitation in implying a Bivens remedy.” (Id. at PageID 472.) (citing Greenlaw v. Klimek, No.
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`4:20-CV-311-SDJ, 2021 WL 6112784 (E.D. Tex. Dec. 27, 2021); Canada v. U.S. Internal Revenue
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`Serv., No. 3:17-cv-2465-S-BN, 2018 WL 4732467 (N.D. Tex. June 21, 2018); Jackson v. U.S.
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`Postal Serv., No. 4:18CV500 RLW, 2019 WL 1331636 (E.D. Mo. Mar. 25, 2019).)
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`Despite Plaintiffs’ contentions, this suit would be a new context for Bivens because of the
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`meaningful differences between this case and the three Supreme Court-recognized Bivens actions.
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`For example, under Bivens, Carlson, and Davis, the statutory and regulatory regimes for patent
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`protection were not implicated, nor were high-ranking officers of the USPTO involved in any of
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`those actions. See Ziglar, 137 S. Ct at 1859 (“If the case is different in a meaningful way from
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`previous Bivens cases decided by this Court, then the context is new.”).
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`Because this is a new context, the Court must determine whether there are any special
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`factors counseling hesitation. Id. at 1857. As pointed out by Defendants, Congress has enacted
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`considerable statutory and regulatory authority in the area of patent law, which would indicate that
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`“there are sound reasons to think Congress might doubt the efficacy or necessity of a[n additional]
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`damages remedy as part of the system for enforcing the law and correcting a wrong.” Id. at 1858.
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`Congress has legislated monetary remedies and injunctive relief for patent infringement and has
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`legislated avenues to challenge the validity of patents, so it follows that Congress would have
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`implemented a remedy for unconstitutional takings of patents as well if it had so desired. Further,
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`Plaintiffs’ allegations implicate the conduct of high-level officers implementing the PTAB’s
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`policies. See id. at 1860 (“Even if the action is confined to the conduct of a particular Executive
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`Officer in a discrete instance, these claims would call into question the formulation and
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`implementation of a general policy.”) These special factors alone would disfavor extending
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`Bivens to this context.
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`Perhaps most importantly, however, is the fact that Plaintiffs had an alternative remedy to
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`correct the due process violation. See id. at 1858 (“[I]f there is an alternative remedial structure
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`present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens
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`cause of action.”). Here, Plaintiffs appealed the PTAB decisions to the Federal Circuit, and the
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`12
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`Case 2:21-cv-02512-JPM-tmp Document 25 Filed 09/19/22 Page 13 of 14 PageID 525
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`Federal Circuit affirmed the PTAB’s findings that both patents were invalid. (ECF No. 1 ¶ 37.)
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`While Plaintiffs contend that they were unable to raise these specific due process arguments in that
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`appeal because they did not know these factual allegations at the time, Plaintiffs were still able to
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`appeal the taking, and the appeal alone provided procedural protection against an unconstitutional
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`taking. Even taking Plaintiffs’ factual allegations as true, it cannot be disputed that the Federal
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`Circuit has already reviewed these PTAB decisions invalidating the two patents and found them
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`“supported by substantial evidence.” See B.E. Tech., L.L.C. v. Sony Mobile Commc’ns (USA)
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`Inc., 657 F. App’x 982, 990 (Fed. Cir. 2016); B.E. Tech., L.L.C. v. Google, Inc., No. 2015-1827,
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`2016 WL 6803057, at *8 (Fed. Cir. Nov. 17, 2016). Because PTAB decisions can be appealed to
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`the Federal Circuit, any improper bias or abuse by PTAB officials can be guarded against by the
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`judicial branch, thus ensuring that the PTAB panels’ reasoning is sound and making a Bivens suit
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`for invalidated patents unnecessary. Therefore, Defendants’ Motion to Dismiss is GRANTED,
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`Plaintiffs having failed to state a plausible Bivens claim.
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`Defendants’ Other Arguments are Moot.
`B.
`Defendants also move to dismiss for lack of standing, for lack of personal jurisdiction,
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`because the claims are time-barred, and on the basis that all Defendants had either absolute
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`immunity or qualified immunity. (See ECF No. 19 at PageID 107–12, 118–33.) Because Plaintiffs
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`fail to state a Bivens claim as a matter of law, however, these contentions need not be addressed
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`on the merits and are MOOT.
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`Case 2:21-cv-02512-JPM-tmp Document 25 Filed 09/19/22 Page 14 of 14 PageID 526
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`IV. CONCLUSION
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`For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED.
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`SO ORDERED, this 19th day of September, 2022.
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`s/ Jon P. McCalla
` JON P. McCALLA
` UNITED STATES DISTRICT JUDGE
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