Case: 22-1876 Document: 26 Page: 1 Filed: 11/08/2022
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`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CHIKEZIE OTTAH,
`Plaintiff-Appellant
`
`v.
`
`BRACEWELL LLP,
`Defendant-Appellee
`______________________
`
`2022-1876
`______________________
`
`Appeal from the United States District Court for the
`Southern District of New York in No. 1:21-cv-00455-KPF,
`Judge Katherine Polk Failla.
`______________________
`
`Decided: November 8, 2022
`______________________
`
`CHIKEZIE OTTAH, Elmont, NY, pro se.
`
`
` DAVID JOHN BALL, Bracewell LLP, New York, NY, for
`defendant-appellee.
` ______________________
`
`Before MOORE, Chief Judge, LOURIE and PROST, Circuit
`Judges.
`
`LOURIE, Circuit Judge.
`
`

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`Case: 22-1876 Document: 26 Page: 2 Filed: 11/08/2022
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`OTTAH v. BRACEWELL LLP
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`Chikezie Ottah appeals from a decision of the United
`
`States District Court for the Southern District of New York
`granting Bracewell LLP’s (“Bracewell’s”) motion to dismiss
`for failure to state a claim of patent infringement and dis-
`missing Ottah’s complaint with prejudice. Bracewell is a
`law firm representing an entity asserted to have been in-
`volved in infringing activity. See Ottah v. Bracewell LLP,
`No. 21 Civ. 455, 2021 WL 5910065 (S.D.N.Y. Dec. 10, 2021)
`(“Decision”). We affirm.
`BACKGROUND
` Ottah owns U.S. Patent 7,152,840 (“the ’840 patent”),
`which is directed to a “book holder removably attachable to
`a vehicle or structure such as a stroller, walker, wheelchair
`or car seat for mobile applications.” ’840 patent, abstract;
`S.A. 94.1 Claim 1 of the ’840 patent reads as follows:
`1. A book holder for removeable attachment, the book
`holder comprising:
`a book support platform, the book support platform
`comprising a front surface, a rear surface and a plu-
`rality of clamps, the front surface adapted for sup-
`porting a book, the plurality of clamps disposed on
`the front surface to engage and retain the book to
`the book support platform, the rear surface sepa-
`rated from the front surface;
`a clasp comprising a clip head, a clip body and a pair
`of resilient clip arms, the clip arms adjustably
`mounted on the clip head, the clip head attached to
`the clip body; and
`an arm comprising a first end and a second end and
`a telescoping arrangement, the clasp on the first
`end, the second end pivotally attached to the book
`
`“S.A.” refers to the Supplemental Appendix filed
`1
`with Bracewell’s brief.
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`Case: 22-1876 Document: 26 Page: 3 Filed: 11/08/2022
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`OTTAH v. BRACEWELL LLP
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`support platform, the telescoping arrangement in-
`terconnecting the first end to[] the second end, the
`clasp spaced from the book support platform
`wherein the book holder is removably attached and
`adjusted to a reading position by the telescoping ar-
`rangement axially adjusting the spaced relation be-
`tween the book support platform and the clasp and
`the pivotal connection on the book support platform
`pivotally adjusting the front surface with respect to
`the arm.
`’840 patent col. 6 ll. 14–38.
`
`In March 2014, Ottah sent a letter to the New York
`Metropolitan Transit Authority (“MTA”) alleging that a
`camera mounting system he had observed on MTA buses
`and other vehicles infringed the ’840 patent. S.A. 37. In
`August 2014, a Bracewell partner sent a letter to Ottah on
`behalf of Bracewell’s client, UTC Building & Industrial
`Systems (“UTC”), the entity responsible for supplying to
`MTA the mobile camera mounting systems that Ottah had
`identified in his letter. S.A. 84–86. In the August 2014
`letter, Bracewell refuted Ottah’s claims that UTC or MTA
`should have acquired a license to the ’840 patent for the
`camera systems and highlighted that at least two federal
`courts had already found that the ’840 patent did not cover
`“a camera mounting system [that] is fixed in place and can-
`not be removed without tools.” Id.; See Decision, 2021 WL
`5910065, at *2 (compiling unsuccessful lawsuits brought by
`Ottah relating to alleged infringement of the ’840 patent).
` On January 15, 2021, Ottah sued Bracewell in the Dis-
`trict Court for the Southern District of New York, alleging
`infringement of the ’840 patent. Bracewell filed a motion
`to dismiss on July 23, 2021. The court granted the motion,
`dismissing Ottah’s infringement claims with prejudice.
`Specifically, the court held that the plain terms of the ’840
`patent contradicted Ottah’s proffered construction of the
`claim language, and that similar arguments had been
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`OTTAH v. BRACEWELL LLP
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`unequivocally rejected by multiple courts that had already
`adjudicated the scope of the ’840 patent. Decision, 2021
`WL 5910065, at *7.
`The district court separately dismissed Ottah’s claim
`for induced patent infringement under 35 U.S.C. § 271(b),
`that claim being based on Bracewell’s failure to acquire a
`license to the ’840 patent for its then-client UTC. In its
`explanation, the court held that Ottah had failed to state a
`claim for direct infringement, which necessarily foreclosed
`an inducement claim. The court further held that Brace-
`well could not be held liable for legal advice that it rendered
`to UTC, absent allegations of misconduct that were not pre-
`sent in the complaint. Id. at *10. The court dismissed the
`action with prejudice after determining that any amend-
`ment to the complaint, although not requested by Ottah,
`would be futile. Id. at *11.
` Ottah appeals the district court’s grant of Bracewell’s
`motion to dismiss. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(1).
`
`DISCUSSION
`We review a grant or denial of a motion to dismiss by
`applying the law of the regional circuit. See Lyda v. CBS
`Corp., 838 F.3d 1331, 1337 (Fed. Cir. 2016). In the Second
`Circuit, “[t]o survive a motion to dismiss under Fed. R. Civ.
`P. 12(b)(6), a complaint must allege sufficient facts, taken
`as true, to state a plausible claim for relief.” Johnson v.
`Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
`A plaintiff must plead “factual content that allows the
`court to draw the reasonable inference that the defendant
`is liable for the misconduct alleged” to satisfy the plausibil-
`ity standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`For a pro se litigant, the pleadings must be “con-
`strue[d] . . . broadly, and interpret[ed] . . . ‘to raise the
`strongest arguments that they suggest.’” Cruz v. Gomez,
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`202 F.3d 593, 597 (2d Cir. 2000) (quoting Graham v. Hen-
`derson, 89 F.3d 75, 79 (2d Cir. 1996)). But a pro se litigant’s
`factual allegations must still “be enough to raise a right to
`relief above the speculative level.” Twombly, 550 U.S. at
`555.
`To prove direct infringement, “one or more claims of the
`patent [must] read on the accused device literally or under
`the doctrine of equivalents.” Cross Med. Prods., Inc. v.
`Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1310 (Fed.
`Cir. 2005). A finding of literal patent infringement “re-
`quires that each and every limitation set forth in a claim
`appear in an accused product.” V-Formation, Inc. v. Benet-
`ton Grp. SpA, 401 F.3d 1307, 1312 (Fed. Cir. 2005). But,
`under the doctrine of equivalents, “a product or process
`that does not literally infringe upon the express terms of a
`patent claim may nonetheless be found to infringe if there
`is ‘equivalence’ between the elements of the accused prod-
`uct or process and the claimed elements of the patented in-
`vention.” DePuy Spine, Inc. v. Medtronic Sofamore Danek,
`Inc., 469 F.3d 1005, 1016 (Fed. Cir. 2006) (citing Warner-
`Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21
`(1997)).
`Under 35 U.S.C. § 271(b), “[w]hoever actively induces
`infringement of a patent shall be liable as an infringer.”
`But finding liability for induced infringement requires a
`predicate finding of direct patent infringement. See Vanda
`Pharms Inc. v. W.-Ward Pharms. Int’l Ltd., 887 F.3d 1117,
`1129 (Fed. Cir. 2018).
`On appeal, it appears that Ottah argues that Bracewell
`is liable for direct and induced patent infringement under
`35 U.S.C. § 271.
`As a threshold matter, Bracewell contends that Ottah’s
`allegations do not satisfy the Twombly plausibility stand-
`ard and that Ottah’s complaint contains no plausible alle-
`gations that Bracewell, a law firm, infringed the ’840
`patent. Even interpreting Ottah’s pleadings “broadly. . . to
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`OTTAH v. BRACEWELL LLP
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`raise the strongest arguments that they suggest,” Cruz,
`202 F.3d at 597, we agree with Bracewell, but address the
`direct and induced infringement arguments by a pro se ap-
`pellant anyway.
`Regarding Ottah’s apparent assertion of direct in-
`fringement of the ’840 patent, Bracewell responds that the
`district court correctly held that the plain language of the
`claims does not literally cover the MTA device identified by
`Ottah. Bracewell contends that the ’840 patent’s single
`claim describes a “book holder for removeable attachment”
`that includes “a book support platform comprising a front
`surface, a rear surface and a plurality of clamps, the front
`surface adapted for supporting a book.” ’840 patent, col. 6
`ll. 14–18. Bracewell correctly highlights that the allegedly
`infringing device is a camera mounting system which is
`necessarily not the book holder described in the claim. We
`agree with Bracewell.
`The single claim in the ’840 patent is clearly directed
`to “a book holder,” which, by its plain language, does not
`cover a camera mounting system, such as the allegedly in-
`fringing system used by MTA, or a “holder” that can hold
`any object other than a book. Claim 1 of the ’840 patent
`clearly states that the book holder is for “removeable at-
`tachment,” ’840 patent, col. 6 l. 14, and the removable na-
`ture of the book holder was emphasized by Ottah during
`prosecution in response to a prior art rejection. See Ottah
`v. VeriFone Sys., Inc., 524 F. App’x 627 (Fed. Cir. 2013). In
`contrast, the district court found, and Bracewell asserts,
`that the allegedly infringing camera mounting system is
`fixed and cannot be easily attached or removed. Thus, the
`allegedly infringing system is neither (1) a book holder nor
`(2) secured by “removeable attachment,” and so “each and
`every limitation set forth in the claim” does not appear in
`the accused product. V-Formation, 401 F.3d at 1312. The
`claim of literal infringement must fail. We accordingly af-
`firm the court’s holding that Ottah’s claim of literal patent
`infringement fails as a matter of law.
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`OTTAH v. BRACEWELL LLP
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`Bracewell further asserts that Ottah’s apparent claim
`of direct patent infringement also fails under the doctrine
`of equivalents. Again, we agree with Bracewell.
`The doctrine of equivalents is limited by prosecution
`history estoppel, under which a patentee cannot reclaim
`through the doctrine of equivalents that which was surren-
`dered or disclaimed in order to obtain the patent. Festo
`Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S.
`722, 734 (2002); Loral Fairchild Corp. v. Sony Corp., 181
`F.3d 1313, 1322 (Fed. Cir. 1999).
`As noted by Bracewell, we have explained in a related
`case brought by Ottah, that, in response to a prior art re-
`jection during prosecution of the ’840 patent, Ottah empha-
`sized that the patentability of the single claim in the ’840
`patent was based on the removable nature of the book
`holder. Ottah, 524 F. App’x at 627. Ottah is estopped, now
`as he was then, from broadening the scope of claim 1 to
`cover fixed mounts for any device, including the allegedly
`infringing camera mount systems, because he expressly
`disclaimed this feature during prosecution. Accordingly,
`we affirm the district court’s holding that, even under the
`doctrine of equivalents, Ottah’s direct infringement claim
`fails.
`Regarding Ottah’s apparent argument of induced in-
`fringement, Bracewell responds that the district court was
`correct in holding that Bracewell, a law firm, cannot be
`held liable for induced patent infringement based on legal
`advice that it rendered to its then-client UTC absent a
`showing of “either malicious intent or personal interest.”
`Ray Legal Consulting Grp. v. DiJoseph, No. 13 Civ. 6867,
`2016 WL 1451547, at *8 (S.D.N.Y. Apr. 12, 2016). We agree
`with Bracewell.
`Here, we have affirmed the district court’s grant of
`Bracewell’s motion to dismiss for failure to state a claim of
`direct infringement of the ’840 patent either literally or un-
`der the doctrine of equivalents. Without a “predicate
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`OTTAH v. BRACEWELL LLP
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`finding” of direct infringement, there can be no finding of
`induced infringement, and so Ottah’s induced infringement
`claim likewise fails. Finally, we affirm the district court’s
`finding that Ottah’s complaint contains no allegations of
`malicious intent or personal interest by Bracewell that
`would constitute a plausible allegation of any wrongful con-
`duct by Bracewell, and that any attempt by Ottah to amend
`the complaint would be futile.
`CONCLUSION
` We have considered Ottah’s remaining arguments but
`find them unpersuasive. For the forgoing reasons, we af-
`firm the district court.
`AFFIRMED
`COSTS
`
`No costs.
`
`