Virginia Lawyers Weekly VA Lawyers Weekly
A Kentucky inmate’s patent infringement action against defendant patent attorney, involving the inmate’s claim that he invented “The Portable Liquid Sanitation Cart” for safe collection of biohazard wastes, which defendant lawyer allegedly offered for sale on his own website, is barred by the doctrine of res judicata, says a Lynchburg U.S. District Court.
This court’s review of the complaints filed in the first Western District case and that filed in the Western District of Kentucky reveals they are identical. Res judicata or claim preclusion bars plaintiff from suing on this claim. It is not a close question whether claim preclusion operates to bar plaintiff from suing on this claim. Another court in the Western District of Virginia dismissed this suit for failure to state a claim upon which relief may be granted in 2008, and subsequently denied plaintiff’s motion for reconsideration. The instant case, and the first Western District case, were brought by plaintiff against the lawyer, and involved no additional parties. The complaint filed in this suit is identical to that in the first Western District case, except this complaint contains certain handwritten comments in the margins. If plaintiff did not agree with the court’s holding in the first Western District case that he had not adequately alleged patent infringement, the proper course of action would have been to take an appeal. He may not get the proverbial second bite at the apple by filing an identical suit a year and a half later and attempting to do so in another court. As this suit is identical to that which was dismissed in the first Western District case, it must be dismissed on the doctrine of claim preclusion. The court separately holds the complaint must be dismissed for the reasons set forth in the first Western District case. There is no basis in the complaint or on the website to support plaintiff’s allegation that defendant used, sold or offered to sell plaintiff’s invention.
The court holds plaintiff’s claim for patent infringement is barred by res judicata and claim preclusion and further, plaintiff has not alleged facts that state a claim to relief that is plausible on its face.
Suit dismissed.
Smith v. McClure (Moon, J.) No. 6:10cv00022, June 8, 2010; USDC at Lynchburg, Va. VLW 010-3-305, 8 pp.
