NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

GEORGE PIECZENIK,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2023-1376

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:22-cv-00111-LAS, Senior Judge Loren A. Smith.

______________________ 

Decided: August 8, 2023

______________________ 

GEORGE PIECZENIK, Stockton, NJ, pro se.

 HAYLEY A. DUNN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BRIAN M. BOYNTON, GARY LEE HAUSKEN. 

______________________ 

Before PROST, CLEVENGER, and CHEN, Circuit Judges.

PER CURIAM. 

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2 PIECZENIK v. US

Dr. George Pieczenik brought claims of infringement of 

U.S. Patent No. 5,866,363 (“the ’363 patent”) against the 

United States in the Court of Federal Claims. The Court 

of Federal Claims dismissed Dr. Pieczenik’s complaint, 

concluding that it lacked subject-matter jurisdiction over 

the claims as pleaded. For the reasons outlined below, we 

affirm. 

BACKGROUND

Dr. Pieczenik is the owner and sole inventor of the ’363 

patent, titled “method and means for sorting and identifying biological information.” (capitalization normalized). 

His complaint alleged, among other things, that “[b]eginning at least as early as 1993, various components 

of . . . the DOD, NIH and the NCI have entered into funding agreements, grants, clinical therapy, [and] licensing 

agreements with various pharmaceutical [companies] and 

individuals who have a history of using the technology and 

products described in the ‘363’ [patent] for clinical and research purposes including . . . development and distribution of monoclonal antibodies, phage display libraries,

recombinant antibodies, recombinant antigens and peptides.” S.A. 1009.1 It also alleged that the government had 

“licensed [U.S. Patent No. 7,041,441] to various pharmaceutical companies,” which amounted to “a direct taking of 

the invention first described in [the ’363 patent].” Id. The 

complaint further attached several postings in the Federal 

Register describing various patents and provisional applications as “owned by an agency of the U.S. Government 

and . . . available for licensing.” J.A. 1011–13. It alleged 

that the “work” in these postings “takes from” the ’363 patent. Id. 

1 S.A. refers to the supplemental appendix submitted by the government. 

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PIECZENIK v. US 3

In addition to mentioning the Takings Clause and alleging that certain actions described were takings, the complaint also alleged that it was “an action under 28 U.S.C. 

§ 1498(a) . . . for the unlicensed use, manufacture[,] and infringement by or on behalf of the United States” of the ’363 

patent. S.A. 1008. 

The government moved to dismiss for lack of subjectmatter jurisdiction and failure to state a claim. The Court 

of Federal Claims granted the motion on 12(b)(1) grounds

while noting that dismissal under 12(b)(6) may have also 

been warranted because the complaint “alleges little more 

than conclusory statements of liability.” S.A. 1005 n.1. 

The court concluded that the complaint cited two jurisdictional grounds, neither of which were supported: (1) the 

Takings Clause; and (2) 28 U.S.C. § 1498(a). S.A. 1002 (citing complaint at ¶¶ 2, 4). 

As for jurisdiction under the Tucker Act based on the

Takings Clause, the Court of Federal Claims determined 

that “patent claims against the federal government, or its 

contractors, must be pursued . . . exclusively under 28 

U.S.C. § 1498.” S.A. 1003. Thus, the court concluded that 

the Tucker Act and Takings Clause could not supply jurisdiction over Dr. Pieczenik’s claims. 

With respect to jurisdiction under 28 U.S.C. § 1498(a), 

the Court of Federal Claims concluded that the complaint 

lacked sufficient factual allegations to establish the conditions of the government’s waiver of sovereign immunity under 28 U.S.C. § 1498(a). Specifically, after concluding that 

Dr. Pieczenik’s claim rested only on a theory of use or manufacture for the government—a conclusion that Dr. Pieczenik does not challenge—the Court of Federal Claims

determined that there were insufficient allegations either

of benefit to or authorization by the government. 

S.A. 1004–05. The court therefore dismissed the complaint. 

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4 PIECZENIK v. US

Dr. Pieczenik timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the Court of Federal Claims’ grant of a motion to dismiss on jurisdictional grounds de novo. Estes 

Exp. Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 

2014). Because “[s]overeign immunity is jurisdictional in 

nature,” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), prerequisites for the government’s waiver of immunity are 

evaluated under 12(b)(1). A plaintiff “bears the burden of 

showing that the United States waived immunity for his 

suit in the Court of Federal Claims.” Booth v. United 

States, 990 F.2d 617, 619 (Fed. Cir. 1993); see also Blueport 

Co. v. United States, 533 F.3d 1374, 1381 (Fed. Cir. 2008). 

We “accept as true all undisputed facts asserted in the 

plaintiff’s complaint and draw all reasonable inferences in 

favor of the plaintiff.” Trusted Integration, Inc. v. United 

States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).2 

The Court of Federal Claims correctly concluded that it 

lacked Tucker Act jurisdiction over Dr. Pieczenik’s infringement claims premised on the Takings Clause. As 

this court has explained, “28 U.S.C. § 1498 provides the 

only avenue for a patent owner to bring an action against 

the government for patent infringement.” Golden v. United 

States, 955 F.3d 981, 987 (Fed. Cir. 2020). The Tucker Act 

does not waive sovereign immunity for claims sounding in 

tort and “a patent infringement action ‘is one sounding in 

tort.’” Id. (quoting Schillinger v. United States, 155 U.S. 

163, 169 (1894)). Further, there is no support for Dr. Pieczenik’s suggestion that a contractual interest supports 

2 Here, the government did not raise any factual disputes about the complaint’s allegations in its 12(b)(1) motion to dismiss. Cf. Reynolds v. Army & Air Force Exch. 

Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). 

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PIECZENIK v. US 5

jurisdiction here. See Appellant’s Br. 7–8. The complaint 

does not allege an agreement between Dr. Pieczenik and 

any other party, so Tucker Act jurisdiction based on breach 

of (or interference with) contractual rights is also inapt. 

Next, we also agree that the complaint’s allegations do 

not support jurisdiction under 28 U.S.C. § 1498(a). Section 

1498(a) serves as a limited waiver of the government’s sovereign immunity “[w]henever an invention described in 

and covered by a patent of the United States is used or 

manufactured by or for the United States without license 

of the owner thereof or lawful right to use or manufacture 

the same.” 28 U.S.C. § 1498(a). This waiver of immunity 

is also forum specific, allowing only actions brought in the 

Court of Federal Claims. Id. Dr. Pieczenik’s complaint

was appropriately dismissed because it does not present a 

nonconclusory allegation of use or manufacture of his invention “for the United States” within the meaning of 

§ 1498(a). 

An accused use is “for the United States” where it is 

(1) for the government’s benefit; and (2) authorized or consented to by the government. Hughes Aircraft Co. v. United 

States, 534 F.2d 889, 897–98 (Ct. Cl. 1976); see also 28 

U.S.C. § 1498(a). A government contractor’s use is for the 

government’s benefit when undertaken pursuant to a government contract that provides services the government 

sought. Sevenson Env’t Servs., Inc. v. Shaw Env’t, Inc., 477 

F.3d 1361, 1366 (Fed. Cir. 2007). Even when a third party’s 

use is pursuant to such a contract, it is still not “for the 

United States” unless the government provided authorization and consent specifically for the accused use. Id. at 

1367. Here, the complaint provides a conclusory allegation 

that “[p]ursuant to cooperative agreement and grant documents and correspondence described below . . . [governmental agencies] granted ‘authorization and consent’ to 

various laboratories for all use and manufacture of the 

technologies recited in the ’363 [p]atent in the performance 

of the relevant grants and contracts.” S.A. 1008. The

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6 PIECZENIK v. US

complaint does not describe those agreements and grants. 

Instead, the complaint generally alleges that “[t]he ’363 

[i]nvention is used in research and clinical treatments” and 

that the government has entered into agreements with entities that “have a history of using the technology and products described in the” ’363 patent. S.A. 1009. These 

allegations are plainly insufficient. See Crow Creek Sioux 

Tribe v. United States, 900 F.3d 1350, 1354–55 (Fed. Cir. 

2018) (holding that facial challenges to subject-matter jurisdiction are subject to the “plausibility” requirement and 

that conclusory statements are not sufficient). Even assuming the government was a beneficiary of one of these 

agreements, there are no factual allegations linking the accused use to the alleged agreements. In fact, there are no 

factual allegations linking the accused use to any authorization and consent by the government, whether pursuant 

to these agreements or otherwise.3 Since the complaint 

does not contain sufficient factual allegations of an accused 

use “for the United States,” the Court of Federal Claims

3 Because the complaint here does not provide any 

nonconclusory allegation of authorization we need not address the extent to which that requirement could blend 

with the overall requirements of proving a claim under 

§ 1498(a). Cf. Spruill v. MSPB, 978 F.2d 679, 686–88 (Fed. 

Cir. 1992) (discussing confusing “the question of subject 

matter jurisdiction . . . with the question of entitlement to 

relief” where “the facts which establish jurisdiction are intertwined with the facts which determine the merits of the 

cause”). Further, since this motion to dismiss involved a 

facial attack on the complaint, any procedural concerns related to early-stage factual attacks on intertwined merits 

questions are inapplicable here. Cf. CNA v. United States, 

535 F.3d 132, 143 (3d Cir. 2008) (discussing different circuits’ approaches to this concern). 

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PIECZENIK v. US 7

correctly concluded that it did not have jurisdiction under 

§ 1498(a).4 

CONCLUSION

We have considered Dr. Pieczenik’s remaining arguments and find them unpersuasive. We affirm the Court 

of Federal Claims’ dismissal for lack of jurisdiction. 

AFFIRMED 

COSTS

No costs.

4 We decline to reach Dr. Pieczenik’s cursory request 

on appeal that he be “given an opportunity to file an 

amended complaint, if that be necessary,” Appellant’s 

Br. 12, because he did not move for leave to amend or file a 

proposed amended complaint at the Court of Federal 

Claims in the first instance. Cf. Refaei v. United States, 

725 F. App’x 945, 951–52 (Fed. Cir. 2018). 

Case: 23-1376 Document: 20 Page: 7 Filed: 08/08/2023