Case: 23-1545 Document: 59 Page: 1 Filed: 04/03/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`URVASHI BHAGAT,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES PATENT AND TRADEMARK
`OFFICE, KATHERINE K. VIDAL, IN HER
`OFFICIAL CAPACITY AS UNDER SECRETARY OF
`COMMERCE FOR INTELLECTUAL PROPERTY
`AND DIRECTOR OF THE UNITED STATES
`PATENT AND TRADEMARK OFFICE, UNITED
`STATES,
`Defendants-Appellees
`______________________
`
`2023-1545
`______________________
`
`Appeal from the United States District Court for the
`Eastern District of Virginia in No. 1:20-cv-01515-CMH-
`IDD, Senior Judge Claude M. Hilton.
`______________________
`
`Decided: April 3, 2024
`______________________
`
`URVASHI BHAGAT, Palo Alto, CA, pro se.
`
`
` MAUREEN DONOVAN QUELER, Office of the Solicitor,
`United States Patent and Trademark Office, Alexandria,
`
`

`

`Case: 23-1545 Document: 59 Page: 2 Filed: 04/03/2024
`
`2
`
`BHAGAT v. PTO
`
`VA, for defendants-appellees. Also represented by OMAR
`FAROOQ AMIN, MARY L. KELLY, THOMAS W. KRAUSE,
`FARHEENA YASMEEN RASHEED; JESSICA D. ABER, MATTHEW
`JAMES MEZGER, Office of the United States Attorney for the
`Eastern District of Virginia, United States Department of
`Justice, Alexandria, VA.
`______________________
`
`Before PROST, CLEVENGER, and CUNNINGHAM, Circuit
`Judges.
`
`PER CURIAM.
` Urvashi Bhagat (“Bhagat”) appeals several orders from
`the United States District Court for the Eastern District of
`Virginia: requiring Bhagat to file paper motions to the
`court, rejecting her requests for discovery enlargement and
`rescheduling of the pretrial conference, denying her re-
`quest to file a second amended complaint, denying her re-
`quest to exclude an expert, granting defendant United
`States Patent and Trademark Office’s (“PTO”) partial mo-
`tion to dismiss Bhagat’s causes of action unrelated to pa-
`tentability, denying her request to strike the PTO’s motion
`for summary judgment and granting that motion finding
`that Bhagat’s patent claims are ineligible under 35 U.S.C.
`§§ 101 and 103. Bhagat also asserts various due process
`violations against the district court. We affirm.
`BACKGROUND
`A. The Patent Application
`Bhagat is the inventor of the United States Patent Ap-
`plication No. 13/877,847 (the “Application”). The Applica-
`tion claims are directed to nutritional formulations
`containing omega-6 fatty acids and antioxidants, which the
`Application describes as contained “in any orally accepta-
`ble form, including, capsules, tablets, liquid formulations,
`or whole foods” and administered orally. The Application
`claims a “packaged product” where “the intermixture of
`
`

`

`Case: 23-1545 Document: 59 Page: 3 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`3
`
`omega-6 fatty acid(s) and antioxidant(s) is not any single
`specific variety of a vegetable, a fruit, a nut, or a seed,” and
`the dosage ranges “from 1 to 40g of omega-6 fatty acids and
`from 25mg to 10g of antioxidants . . . wherein the antioxi-
`dants comprise one or more polyphenols in the dosage of
`greater than 5mg.” App. Br. to PTO at 46, claim 82. The
`Application also claims the product in a “kit” that includes
`a range of two to twenty different nutritional formulations,
`“which collectively provide an amount of nutrients from
`0.0001 to 100 g/kg body weight . . . 40-80% of individual’s
`daily calories . . . 10-50% calories from protein, 15-50% cal-
`ories from lipids, and 35-85% calories from carbohydrates;
`and/or . . . deliver at least 50% of daily micronutrients for
`the individual” and/or is made up of “at least one of: vege-
`table or vegetable juice packs, fruit or fruit juice packs, dry
`grain packs, cereal packs, legume, grain, nuts, or seed
`packs, meat or seafood packs, or herbs, lipids, meals, snack,
`side dish, salad, desserts, milks, powder, puree, or yogurt
`packs.” App. Br. to PTO at 23–4, claim 95.
`The Application also contains method claims, wherein
`claim 88 sets out steps for “administering the dosage to an
`individual, wherein the individual belongs to a diet cohort”
`based on factors like “gender, age, genetic profile, family
`history, climactic temperature, or medical condition,” claim
`97 describes a method for treating “a medical condition or
`disease in the individual” and claim 116 recites a method
`for treating a variety of conditions such as aging, mental
`disorders, diabetes, autoimmune and infectious diseases.
`App. Br. to PTO at 21, 24, 31–32, claims 88, 97, and 116.
`None of the method claims, however, “include tailoring the
`nutrient dosages in the product to the diet cohort or re-
`stricting the total daily intake of any of the claimed nutri-
`ents.” J.A. 21.
`The Application additionally includes a withdrawn
`claim directed to a computer system to implement the
`method claims and to output nutritional plans for individ-
`uals based on dietary preferences and guidelines “wherein
`
`

`

`Case: 23-1545 Document: 59 Page: 4 Filed: 04/03/2024
`
`4
`
`BHAGAT v. PTO
`
`the nutrition program comprises a listing of formulations,
`optionally comprising food items, wherein from 1 to 40g of
`omega-6 fatty acids and from 5mg to 10g of antioxidants
`comprising at least 5mg of one or more polyphenols are in-
`cluded in the program for daily consumption by the indi-
`vidual.” App. Br. to PTO at 29–30, claim 112.
`B. Procedural History
`1. PTO Proceedings
`Bhagat filed the Application with the PTO in 2013. The
`PTO examiner rejected all pending claims of the Applica-
`tion for obviousness and rejected claims 82 and 99 for fail-
`ing to comply with the written description requirement,
`claims 82, 87, 91–93, 96, 97, 99, 102, 109, 110, and 113–120
`for indefiniteness, and claims 88, 89, 95, 103, and 107–110
`for improper dependency.
`Bhagat appealed to the Patent Trial and Appeal Board
`(“Board”), which reversed the rejection for written descrip-
`tion and affirmed the rejection for obviousness on the mer-
`its.1 The Board affirmed the obviousness rejection because
`the Application claims were “obvious in light of numerous
`past expert studies and disclosures,” particularly Claudia
`R. Morris’s U.S. Published Patent Application Number
`2008/0213239 (“Morris”). Bhagat v. U.S. Pat. & Trade-
`mark Off., No. 1:20-cv-1515, 2023 WL 2721003, at *2 (E.D.
`Va. Mar. 30, 2023) (“Summary Judgment Opinion”).
`The Board explained that Morris addresses the treat-
`ment of various conditions, like cardiovascular disease, by
`disclosing nutritional formulations comprising omega-6
`
`
`1 The Board summarily affirmed the rejections based
`on indefiniteness and improper dependency because Bha-
`gat failed to include in her Appeal Brief any substantive
`arguments on the merits that the rejections on those
`grounds should be reversed. J.A. 5980, 6480.
`
`

`

`Case: 23-1545 Document: 59 Page: 5 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`5
`
`fatty acids and Vitamin E in dosages and amounts that
`overlap with those in the Application claims. Id. at *2
`(“Morris shows that the formulations comprise from about
`50 mg to about 500 mg omega-6 fatty acids that may be
`administered once, twice, or three times daily, which would
`equal a dosage ranging from 50 mg to 1,500 mg of omega-6
`fatty acids a day.”). The Board also found that Morris dis-
`closed packaged formulations of omega-6 fatty acids, Vita-
`min E, and polyphenols, as well as dosages of omega-6 and
`Vitamin E in the ranges claimed in the Application claims
`and disclosed that “dosages are a result-effective variable
`and may be optimized for an individual,” rendering the Ap-
`plication’s claimed dosages obvious. Id. Factors discussed
`in Morris as impacting the preparation of formulations in-
`clude age, weight, and genetic makeup, which overlap with
`the diet cohort factors in the Application. Id. at *2. The
`Board found that Morris disclosed most of what the
`claimed invention covered, and that the only difference—
`that the Application disclosed using nutrients from differ-
`ent sources—was rendered obvious from other expert dis-
`closures teaching the mixtures of different nutrient
`sources. Id. at *2 (“The only difference the Board found
`between Morris and [the Application’s] claimed formula-
`tion was an explicit disclosure of using nutrients from dif-
`ferent sources . . . . [which] would have been obvious in
`light of another expert’s teachings of oil blends from differ-
`ent sources.”).
`
`2. District Court Proceedings
`On December 10, 2020, Bhagat filed suit in the United
`States District Court for the Eastern District of Virginia to
`challenge the Board’s decision, alleging that the district
`court had jurisdiction pursuant to 35 U.S.C. § 145 and
`28 U.S.C. §§ 1331, 1338(a), and 1361. Id. at *2. Bhagat
`amended her complaint on April 19, 2021. Am. Compl.,
`Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 13. In addi-
`tion to alleging that the PTO erroneously rejected her pa-
`tent claims, Bhagat asserted entitlement to general
`
`

`

`Case: 23-1545 Document: 59 Page: 6 Filed: 04/03/2024
`
`6
`
`BHAGAT v. PTO
`
`damages due to the PTO’s “bad faith,” and asserted causes
`of action for “taking of her property, including but not lim-
`ited to her patent,” tortious harassment, and a mandamus
`compelling the PTO to issue the Application’s rejected pa-
`tent claims. Am. Compl. at ¶¶ 64–84, Bhagat v. USPTO,
`(No. 1:20-cv-01515), ECF 13; Bhagat v. U.S. Pat. & Trade-
`mark Off., No. 1:20-cv-1515, 2021 WL 3130866, at *2 (E.D.
`Va. July 22, 2021) (“Motion to Dismiss Opinion”).
`On July 22, 2021, the district court granted the PTO’s
`motion to dismiss all of Bhagat’s causes of action that were
`not related to the patentability of the Application claims
`and to strike Bhagat’s request for a jury trial. Motion to
`Dismiss Opinion, 2021 WL 3130866, at *3.
`The district court first determined that it did not have
`subject matter jurisdiction over the claims for takings,
`money damages, or tortious harassment due to sovereign
`immunity. Id. at *1. As the district court noted, agencies
`of the United States, such as the PTO, are generally
`shielded from liability by sovereign immunity unless Con-
`gress has expressly waived it. Id.
`The district court explained that “Congress has not
`waived its sovereign immunity for money damages in ac-
`tions brought pursuant to 35 U.S.C. § 145” and therefore
`found it did not have jurisdiction over any of Bhagat’s
`claims for money damages under Section 145. Id.
`The district court then stated that the Tucker Act
`waives sovereign immunity for claims for non-tort money
`damages, such as takings claims, but gives exclusive juris-
`diction to the Court of Federal Claims when those damages
`are over $10,000, and that the Federal Tort Claims Act
`waives sovereign immunity for tortious harassment only if
`a plaintiff first presents an administrative claim to the
`agency that the plaintiff purports is responsible for their
`injury. Id. at *1–2. Since Bhagat brought claims for
`$500,000,000 against the United States, the district court
`concluded that the Court of Federal Claims had exclusive
`
`

`

`Case: 23-1545 Document: 59 Page: 7 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`7
`
`jurisdiction over the damages claim under the Tucker Act.
`Id. at *1. The district court also found that since Bhagat
`did not present an administrative claim to the PTO, the
`agency allegedly responsible for harassing her, the district
`court did not have jurisdiction over her tortious harass-
`ment claim. Id. at *2.
`Next, the district court addressed the PTO’s motion to
`dismiss for failure to state a claim on which relief could be
`granted, finding that there were no facts in the Amended
`Complaint to support Bhagat’s allegations that the PTO vi-
`olated her constitutional rights, made false statements, or
`that she was entitled to mandamus relief. Id. The district
`court found that Bhagat failed to establish, as required for
`mandamus relief, that “(1) she has a clear right to the relief
`requested and (2) no other relief is available” because she
`failed to plausibly allege that the PTO owes her a duty to
`issue her patent and because she had another avenue of
`relief under Section 145, which she also asserted in her
`Amended Complaint. Id. (citing Heckler v. Ringer, 466 U.S.
`603, 616 (1984)). The district court also concluded that
`Bhagat alleged only that the PTO erred in adjudicating her
`patent without alleging any facts to support her claim that
`the PTO made false statements and acted with misconduct,
`and therefore concluded that she made only “naked asser-
`tions” that could not survive the PTO’s motion to dismiss.
`Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Sim-
`ilarly, the district court found that Bhagat’s allegation that
`the PTO violated her constitutional rights was not a plau-
`sible claim because she identified neither the violative ac-
`tion the PTO allegedly took nor the constitutional right it
`purportedly violated. Id. at *3.
`Finally, the district court granted the PTO’s motion to
`strike Bhagat’s request for a jury trial because the Seventh
`Amendment right to a jury trial is not applicable in actions
`against the United States, unless Congress in waiving sov-
`ereign immunity unequivocally expresses that the right ex-
`ists in the authorizing statute. Id. The district court held
`
`

`

`Case: 23-1545 Document: 59 Page: 8 Filed: 04/03/2024
`
`8
`
`BHAGAT v. PTO
`
`that the remaining patent claim, for which Congress
`waived sovereign immunity under Section 145, did not pro-
`vide Bhagat with a right to a jury trial because Section 145
`contains no unequivocal right to a jury trial. Id.
`Thus, the district court dismissed all causes of action
`besides the patent claim under Section 145 and struck Bha-
`gat’s request for a jury trial. Id.
`On December 14, 2022, Bhagat filed a motion for the
`extension of time for expert rebuttal reports and the en-
`largement of discovery, arguing that the PTO’s “long-
`winded and disjointed” expert reports required more time
`to prepare the rebuttals, that illness and unavailability of
`her experts caused a delay, and that she contacted the
`judge’s law clerk by phone and email to request a confer-
`ence to extend time for expert rebuttals and enlarge discov-
`ery before the close of discovery.2 Mot. for Extension of
`Time for Expert Rebuttal Report & Further Enlargement
`of Discovery, Bhagat v. USPTO, (No. 1:20-cv-01515), ECF
`62, 64. Bhagat requested an extension of time for disclos-
`ing rebuttals to the PTO’s experts to December 9, 2022, the
`date that she did submit the rebuttals, which was thirteen
`days after the initial deadline of November 25, 2022. ECF
`64, at 11. She also requested that discovery be enlarged to
`February 6, 2023, to allow her further discovery requests
`and to permit her to depose the PTO’s expert witness, and
`for the final pretrial conference to be delayed from January
`12, 2023, to February 12, 2023. ECF 64, at 11.
`Also on December 14, 2022, Bhagat filed a motion to
`disqualify the PTO’s expert, Dr. William S. Harris, as an
`
`
`2 Per her own admission, Bhagat contacted the clerk
`multiple times from November 20, 2022, through Decem-
`ber 5, 2022. ECF 64, at 6. The district court subsequently
`issued orders explaining that this was not the proper mode
`for requesting relief from the court, discussed infra at 8–9.
`
`

`

`Case: 23-1545 Document: 59 Page: 9 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`9
`
`expert witness due to “numerous conflicts of interest, and
`his opinions and testimony [being] neither relevant nor re-
`liable pursuant to the standards set forth in Daubert v.
`Merrell Dow Pharm., Inc., 506 U.S. 579 (1993).” Mot. to
`Disqualify Dr. Harris at 1, Bhagat v. USPTO, (No. 1:20-cv-
`01515), ECF 66.
`On December 16, 2022, the district court issued an or-
`der addressing Bhagat “constantly emailing and calling the
`[c]ourt requesting various forms of relief despite being in-
`formed by the [c]ourt, on more than one occasion, that writ-
`ten motions are the only appropriate form by which to
`request relief from the [c]ourt.” Bhagat v. U.S. Pat. &
`Trademark Off., No. 1:20-cv-01515, 2022 WL 18401639, at
`*1 (E.D. Va. Dec. 16, 2022), ECF 68 (“First Ex Parte Com-
`munications Order”). The district court noted that, while
`it had granted Bhagat’s motion for Pro Se E-Noticing, that
`grant did not permit her to “file documents or requests for
`relief electronically” and that she must follow the proper
`procedure for requesting relief, which is “filing a paper copy
`of any motion through the Clerk’s Office that includes the
`relief requested and a legal basis for granting such relief.”
`Id. The district court directed Bhagat to review the United
`States District Court for the Eastern District of Virginia
`Pro Se Reference Handbook and asserted that it would not
`respond to any further email or phone communications
`from Bhagat. Id.
`In response, Bhagat filed a motion, which the district
`court “interpret[ed] . . . as a Motion to Vacate the Decem-
`ber 16, 2022 Order.” Bhagat v. U.S. Pat. & Trademark Off.,
`No. 1:20-cv-01515, 2022 WL 18401638, at *1 (E.D. Va. Dec.
`30, 2022), ECF 75 (“Second Ex Parte Communications Or-
`der”). The district court denied this motion on December
`30, 2022, reiterating that Bhagat “should never contact
`chambers regarding any substantive issues concerning the
`case unless authorized by the [c]ourt in advance” and con-
`cluding that Bhagat’s substantive request for extension of
`time for expert rebuttal reports, which was the topic of her
`
`

`

`Case: 23-1545 Document: 59 Page: 10 Filed: 04/03/2024
`
`10
`
`BHAGAT v. PTO
`
`ex parte communication, was not an exception to this rule
`just because the district court had the “ability to sua sponte
`grant an extension of time ‘with or without motion or no-
`tice’ as noted” in Federal Rule of Civil Procedure 6(b)(1)(A).
`Id.
`On January 10, 2023, the district court denied Bhagat’s
`motion to enlarge discovery to February 6, 2023, and to re-
`schedule the pretrial conference, but granted the motion in
`part to permit the extension of the rebuttal disclosures to
`December 9, 2022. Order on Mot. for Extension of Discov-
`ery, Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 77. The
`district court reasoned that Bhagat’s motion, which she
`filed after the close of discovery, was not timely, and that
`regardless she failed to show good cause for an extension
`because her delays were caused by her own legal strategy3
`and inability to manage her personal workload. Id. The
`district court found that, since Bhagat did not begin discov-
`ery until November 1, 2022, despite discovery opening on
`August 11, 2022, she did not show good cause for her ex-
`tension request. Id. The district court was also unper-
`suaded by Bhagat’s arguments that the PTO has more
`resources than she does, as it noted there is often a dispar-
`ity in resources among parties. Id. Thus, it rejected her
`
`
`3 Bhagat filed a petition to the United States Su-
`preme Court requesting that the Supreme Court issue a
`writ of mandamus to the United States District Court for
`the Eastern District of Virginia on August 17, 2022. In re
`Urvashi Bhagat, 2022 WL 4226537 (August 17, 2022). Her
`Petition was denied on October 31, 2022. In re Bhagat, 143
`S. Ct. 396 (2022). The district court determined that Bha-
`gat’s decision to wait to begin discovery until after the out-
`come of her petition to the Supreme Court was a legal
`strategy that did not entitle her to an extension for discov-
`ery. Order on Mot. for Extension of Discovery, Bhagat v.
`USPTO, (No. 1:20-cv-01515), ECF 77.
`
`

`

`Case: 23-1545 Document: 59 Page: 11 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`11
`
`request to extend discovery or to reschedule the pretrial
`conference. Id.
`On January 17, 2023, the district court denied Bhagat’s
`motion to disqualify Dr. Harris, reasoning that her “objec-
`tions go to the weight of the expert’s testimony, not admis-
`sibility.” Order Declining to Disqualify Dr. Harris, Bhagat
`v. USPTO, (No. 1:20-cv-01515), ECF 83.
`The PTO filed a motion for summary judgment on Jan-
`uary 20, 2023, arguing that the undisputed facts show that
`the Application claims are patent
`ineligible under
`35 U.S.C. § 101 and that claims 82–89, 91–104, 107–110,
`and 113–120 are unpatentable as obvious under 35 U.S.C.
`§ 103. On January 31, 2023, Bhagat responded with a mo-
`tion to strike the PTO’s summary judgment motion as
`premature since she had appealed the close of discovery,
`denial of the rescheduling of the pretrial conference, and
`admissibility of the PTO’s expert report.
`
`The district court denied Bhagat’s motion to strike the
`PTO’s motion for summary judgment and granted the
`PTO’s motion, finding that the claims at issue are patent-
`ineligible under Section 101 and unpatentable under 103.
`Summary Judgment Opinion, 2023 WL 2721003, at *1–5.
`The district court first addressed the motion to strike,
`finding that since Bhagat had over four months to conduct
`discovery, her argument that the motion for summary
`judgment was premature due to her appeal of the district
`court’s refusal to extend discovery was not persuasive. Id.
`at *1. The district court also found that Bhagat failed to
`demonstrate that a stay was supported pending interlocu-
`tory appeal of discovery matters. Id.
`
`After concluding that Bhagat’s motion to strike the
`PTO’s motion should be denied, the district court turned to
`the merits of the PTO’s summary judgment motion.
`The district court first addressed the PTO’s argument
`that all the Application claims are patent ineligible under
`
`

`

`Case: 23-1545 Document: 59 Page: 12 Filed: 04/03/2024
`
`12
`
`BHAGAT v. PTO
`
`Section 101, finding that both the product and method
`claims were directed to patent-ineligible subject matter
`and were not transformed to patent-eligible subject matter
`because the only limitations beyond those directed at nat-
`ural phenomena or abstract ideas were well-known and
`conventional. Id. at *3–4 (citing Alice Corp. Pty. Ltd. v.
`CLS Bank Int’l, 573 U.S. 208 (2014)); see also PTO Mem.
`in Supp. of Summ. Judgment at 16–24, Bhagat v. USPTO
`(No. 1:20-cv-01515), ECF 86.
`In its Alice step one analysis, i.e., determining whether
`the claims are directed to a patent-ineligible concept such
`as a natural phenomenon or abstract idea, the district
`court found that the Application claims recited a combina-
`tion of nutrients naturally present in almonds, with some
`of the claims describing the same dosages of omega-6 fatty
`acids, polyphenols, and phytosterols contained in almonds.
`Summary Judgment Opinion, 2023 WL 2721003, at *3
`(“[A]lmonds contain the dosages of omega-6 fatty acids re-
`cited in claims 92, 107, 113, and 119, and the polyphenol
`dosage recited in claim 120. Almonds further comprise
`phytosterols as required by claim 85, in the dosages recited
`in claims 86, 93, 108, and 114.”); see also id. (“Claim 94’s
`requirement that one formulation provide omega-6 fatty
`acids in a dosage less than 1 g, but that a plurality collec-
`tively provide 1 to 40 g of omega-6 merely encompasses a
`product of 100 g of almonds broken into 5 g increments. Al-
`monds also contain the phytochemicals, lipids, antioxi-
`dants, vitamins, minerals, and fiber recited in claims 87
`and 101 [and] claim 89 encompasses a mixture of one or
`more food items, which includes a mixture of 100 g of al-
`monds with other nuts.”). The district court also found that
`claim 112, which “deals with a computer system that im-
`plements the method of preparing the product” was di-
`rected to the abstract idea of meal planning. Id. at *4.
` In its Alice step two analysis, i.e., determining if any
`additional claim limitations transform a natural phenome-
`non or abstract idea into a patent-eligible invention, the
`
`

`

`Case: 23-1545 Document: 59 Page: 13 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`13
`
`district court concluded that all the remaining limitations
`recited well-known activities such as conventional packag-
`ing practices, crushing almonds into a powder, and “admin-
`istering,” “determining,” “selecting,” and “preparing” steps.
`Id. The district court found that the “administering” step
`included eating or feeding almonds to an individual and
`that the “diet cohorts” were identified in “a generic manner
`that all humans would qualify.” Id. Similarly, the district
`court found that the “determining” step groups individuals
`into the broad diet cohorts “based on food preference, die-
`tary habits, age, or gender” and that the “selecting” and
`“preparing” steps link the nutritional formulations to the
`diet cohorts. Id. The district court also concluded that
`claim 112 does nothing more than add conventional com-
`puter components to the abstract idea of meal planning.
`Id. Thus, the district court concluded the Application’s
`claims were patent ineligible under Section 101.
`The district court then found that the pending Applica-
`tion claims were further unpatentable as obvious under
`Section 103 considering the teachings of Morris, which the
`Board relied on in rejecting the claims, and Joshua C. An-
`thony et al., U.S. Published Patent Application Number
`2007/0166411 A1 (“Anthony”). Id. at *5. The district court
`noted that the Board determined that Morris taught “pre-
`paring and administering a packaged dietary formulation
`comprising omega-6 fatty acids, Vitamin E, and polyphe-
`nols” as well as “dosages of omega-6 fatty acids and Vita-
`min E overlapping the claimed range.” Id. The district
`court also noted that the PTO’s expert witness Dr. Harris
`explained that “the benefits of consuming the claimed nu-
`trients were well-known in the art as of 2010” and that
`Bhagat had not argued how the references Dr. Harris used
`to support this statement did not disclose the limitations in
`the dependent claims. Id. The district court found that
`Bhagat failed to establish unexpected results to rebut the
`presumption of obviousness from the overlapping dosage
`ranges in Morris and the Application and could not support
`
`

`

`Case: 23-1545 Document: 59 Page: 14 Filed: 04/03/2024
`
`14
`
`BHAGAT v. PTO
`
`her contention that Morris teaches away from the Applica-
`tion claims. Id. Finally, the district court found that Bha-
`gat’s argument that the prior art was not relevant because
`it did not address the same problem solved by her Applica-
`tion claims was unconvincing because “the prior art [was]
`from the same field of endeavor in nutritional formula-
`tions.” Id.
`Therefore, the district court granted the PTO’s motion
`for summary judgment that the Application claims were
`not eligible for patent protection. Id.
`On March 15, 2023, Bhagat filed a motion for leave to
`file a second amended complaint, which the district court
`denied as unduly delayed on March 31, 2023. Mot. for
`Leave to File Second Am. Compl., Bhagat v. USPTO, (No.
`1:20-cv-01515), ECF 113; Order Denying Mot. to File Sec-
`ond Am. Compl., Bhagat v. USPTO, (No. 1:20-cv-01515),
`ECF 126.
`Bhagat appeals (1) the district court’s orders requiring
`her to file paper motions to request relief from the court,
`denying her request for the enlargement of discovery, deny-
`ing her challenge to the admissibility of Dr. Harris’s testi-
`mony, and denying her leave to file a second amended
`complaint, and alleges that the failure of the judges to
`recuse themselves was a violation of due process; (2) the
`district court’s dismissal of her damages, takings, and mis-
`conduct claims and striking of her demand for jury trial;
`and (3) the district court’s denial of her motion to strike,
`and its subsequent grant of, the PTO’s motion for summary
`judgment. This Court has jurisdiction under 28 U.S.C.
`§ 1295(a)(1).
`
`DISCUSSION
`This Court reviews district court orders on procedure,
`
`discovery, complaint amendments, judge recusal and the
`admissibility of evidence under the law of the regional cir-
`cuit; here, the Fourth Circuit, which reviews these
`
`

`

`Case: 23-1545 Document: 59 Page: 15 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`15
`
`decisions for an abuse of discretion. Panduit Corp. v. All
`States Plastic Mfg. Co., 744 F.2d 1564, 1574–75 (Fed. Cir.
`1984); United States ex rel. Nicholson v. MedCom Caroli-
`nas, Inc., 42 F.4th 185, 196 (4th Cir. 2022) (“District courts
`have inherent power to manage their dockets with an eye
`toward speedy and efficient resolutions . . . . So we review
`decisions about the nature of a dismissal . . . for an abuse
`of discretion.”); United States ex rel. Becker v. Westinghouse
`Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (“We
`afford substantial discretion to a district court in managing
`discovery and review discovery rulings only for abuse of
`that discretion.”); Lone Star Steakhouse & Saloon, Inc. v.
`Alpha of Virginia, Inc., 43 F.3d 922, 940 (4th Cir. 1995)
`(“We review for abuse of discretion a district court’s ruling
`on a motion for leave to amend and to add counterclaims.”);
`United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003)
`(“We review a trial judge’s decision on matters of recusal
`for abuse of discretion.”); United States v. Crisp, 324 F.3d
`261, 265 (4th Cir. 2003) (“We review for abuse of discretion
`a district court’s decision to admit or reject expert testi-
`mony.”).
`This Court also reviews procedural decisions that are
`not unique to patent law, such as dismissal of a complaint
`for lack of jurisdiction or failure to state a claim and a grant
`of summary judgment, under the law of the regional cir-
`cuit. Madey v. Duke Univ., 307 F.3d 1351, 1358 (Fed. Cir.
`2002); Weisner v. Google LLC, 51 F.4th 1073, 1081 (Fed.
`Cir. 2022); Syngenta Crop Prot., LLC v. Willowood, LLC,
`944 F.3d 1344, 1355 (Fed. Cir. 2019). The Fourth Circuit
`reviews dismissals under both FRCP 12(b)(1) and 12(b)(6)
`de novo. Madey, 307 F.3d at 1358 (citing Evans v. B.F. Per-
`kins Co., 166 F.3d 642, 647 (4th Cir. 1999)); Burbach
`Broad. Co. of Del. V. Elkins Radio Corp., 278 F.3d 401,
`405–06 (4th Cir. 2002). Similarly, the Fourth Circuit re-
`views the grant of summary judgment de novo, construing
`the evidence in the light most favorable to the non-moving
`party. Syngenta, 944 F.3d at 1355. The Fourth Circuit
`
`

`

`Case: 23-1545 Document: 59 Page: 16 Filed: 04/03/2024
`
`16
`
`BHAGAT v. PTO
`
`reviews district court determinations of whether summary
`judgment was premature for an abuse of discretion. Har-
`rods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
`244 (4th Cir. 2002).
`A. Non-Patent Claims
`The district court did not abuse its discretion or violate
`due process in issuing its orders declining to extend discov-
`ery, requiring Bhagat to file motions to request relief and
`to do so via paper motions rather than through electronic
`filing, admitting Dr. Harris’s testimony, or declining to al-
`low Bhagat another amendment to her complaint. It was
`also not reversable error for Judge Claude M. Hilton and
`Magistrate Judge Ivan Davis to decline to recuse them-
`selves. The district court did not err as a matter of law in
`dismissing Bhagat’s claims for damages, takings, constitu-
`tional violations, and mandamus under FRCP 12(b)(1) and
`12(b)(6).
`
`1. Procedural Issues
`Bhagat fails to demonstrate that the district court
`abused its discretion or violated due process in its manage-
`ment of discovery and the trial procedure.
`First, it was not an abuse of discretion to deny Bhagat’s
`request to extend discovery, which she filed after the close
`of discovery. Bhagat’s argument that her ex parte emails
`and calls were an attempt to timely request the extension
`of discovery fails because the district court repeatedly no-
`tified Bhagat that the proper procedure for requesting re-
`lief from the court was through filing paper motions. See,
`e.g., First Ex Parte Communications Order, Bhagat v.
`USPTO, (No. 1:20-cv-01515), ECF 68. Thus, Bhagat’s ac-
`tions did not amount to “excusable neglect” that could jus-
`tify her untimely extension motion. Symbionics Inc. v.
`Ortlieb, 432 F. App’x 216, 219–20 (4th Cir. 2011) (“[A] dis-
`trict court should find excusable neglect only in the extraor-
`dinary cases where injustice would otherwise result.”
`
`

`

`Case: 23-1545 Document: 59 Page: 17 Filed: 04/03/2024
`
`BHAGAT v. PTO
`
`17
`
`(emphasis in original)). Further, the district court did not
`abuse its discretion in finding that Bhagat failed to demon-
`strate good cause to extend discovery because she waited
`three months from the opening of