N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JOHN STEPHEN SACCHET TI, Plaintiff

- Appellant

MARK JOSEPH SACCHETTI, Plaintiff

v.

UNITED STATES, Defendant

- Appellee

CYRACOM INTERNATIONA L, LLC, Third Party Defendant

- Appellee

______________________

2017

- 1484

______________________ Appeal from the United States Court of Federal Claims in No. 1:15

- cv

- 01399

- MBH , Judge Marian Blank Horn.

______________________

Decided: October 6 , 2017

______________________

J OHN S TEPHEN S ACCHETTI , Lady Lake, FL, pro se.

J ENNA E LIZABETH M UNNELLY , Appellate Staff, Civil Division, United States Department of Justice, Washin g-SACCHETTI v. UNITED STATES 2

ton, DC, for defendant

- appellee. Also represented by C HAD A. R EADLER , G ARY L EE H AUSKEN , S COTT D AVID B OLDEN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.

L AWRENCE K ASTEN , Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for third party defendant

- appellee. Also represented by S HANE E. O LAFSON

.

______________________

Before C HEN , P LAGER , and H UGHES , Circuit Judges.

P ER C URIAM

. John Sacchetti , proceeding pro se, appeals a decision from the United States Court of Fede ral Claims (Claims Court), dismissing his asserted patent infringement claims (patent claims) and trademark infringement claims (trademark claims) against the United States (the government) for lack of subject matter jurisdiction. Because the plaintiff did not demonstrate that he brought the patent claims within the jurisdictional, six

- year statute of limitations for all claims filed in the Claims Court and because the Claims Court has no jurisdiction to hear the trademark claims , we affirm

. B ACKGROUND

John Sacchetti and Mark Sacchetti (collectively, the plaintiffs) filed suit against the government on November 19, 2015, alleging infringement of their intellectual pro perty rights. More specifically, the plaintiffs alleged that the government has not compensated them for its use of two patents that they own concerning dual handset telephones— U.S. Design Patent No. 382,264 and U.S. Patent No. 5,604,798 (patents

- in

- suit)

— and a trademark that is purportedly registered to Mark Sacchetti for the phrase “The You Talk Two Phone .”SACCHETTI v. UNITED STATES 3

Upon receipt of the complaint, the government not ified third

- party government contractors that were impl icated by the plaintiffs’ allegations , including CryaCom International, Inc. (CryaCom). CryaCom joined the case

a s a third

- party defendant. Both the government and CryaCom (collectively, defendants) then moved to dismiss the case for, among other reasons, lack of subject matter jurisdiction. Specifically, they argued that the patent claims began to accrue more than six years before the plaintiffs filed their complaint, and thus the claims fell outside of the jurisdictional, six

- year statute of limitations prescribed in 28 U.S.C. § 2501 (2012), for claims brought in the Claims Court. As to the plaintiffs’ trademark claims, they argued that the Claims Court had no juri sdiction to hear such claims.
The Claims Court agreed with the defendants, co ncluding that the plaintiffs failed to meet their burden of establishing subject matter jurisdiction over the patent and trademark claims. In construing the plaintiffs’ complaint liberally, the Claims Court found that their patent claims began to accrue before November 19, 2009

— the critical date for jurisdictional purposes

— and held that only United States District Courts cou ld ente rtain the trademark claims

. John Sacchetti now appeals the Claims Court’s co nclusions. 1 We have juris diction pursuant to 28 U.S.C. § 1295(a)(3) (2012).

1 Mark Sacchetti passed away during the Claims Court proceedings, and although John Sacchetti twice sought to have him substituted by another party, John Sacchetti ’s efforts were rejected by the Claims Court. In light of these circumstances, Mark Sacchetti had to be dismissed from the case, leaving only John Sacchetti to appeal any adverse rulings from the Claims Court. See R.SACCHETTI v. UNITED STATES 4

D ISCUSSION A party must establish the Claims Court’s jurisdiction by a preponderance of the evidence. E.g.

, Acevedo v. United States , 824 F.3d 1365, 1368 (Fed. Cir.), cert. d enied

, 137 S. Ct. 390 (2016) (citing Trusted Integration, Inc. v. United States , 659 F.3d 1159, 1163 (Fed. Cir. 2011 ) ). This remains so even as we liberally construe a

pro se party’s pleadings. See, e.g.

, Henke v. United States

, 60 F.3d 795, 799 (Fed. Cir. 1995). We review a Claims Court’s decision to dismiss for lack of subject matter jurisdiction de novo. E.g.

, Petro

- Hunt, L.L.C. v. United States , 862 F.3d 1370, 1378 ( Fed. Cir. 2017) (citing Fid. & Guar. Ins. Underwriters, Inc. v. United States , 805 F.3d 1082, 1087 (Fed. Cir. 2015)). We conclude after liberally reading John Sacchetti’s informal briefing that the Claims Court did not err in dismissing his patent and tra demark claims.
28 U.S.C. § 2501 imposes a six

- year statute of limit ations on any causes of action filed in the Claims Court. Id

. (“Every claim of which the [Claims Court] has jurisdi ction shall be barred unless the petition thereon is filed within six y ears after such claim first accrues.”). This statute of limitations is a jurisdictional limit on the authority of the Claims Court. See Caguas Cent. Fed. Sav. Bank v. United States , 215 F.3d 1304, 1310 (Fed. Cir. 2000) (citing Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576

– 77 (Fed. Cir. 1988)). And it must be “strictly construed.” MacLean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 2006) (quoting Hopland

, 855 F.2d at 1576

– 77).

The Claims Court understood John Sacchetti t o be claiming that he was entitled to compensation under 28

Fed. Cl. 25. Moreover, John Sacchetti does not appeal the Claims Court’s decision to d eny substitution.SACCHETTI v. UNITED STATES 5

U.S.C. § 1498 on the ground that the government was infringing his patents. Appx. at 13

- 14. The government agrees, and notes that this action arose pursuant to Section 1498 and the Lanham Act. Appellee Br. at 1. John Sac chetti has not expressed a different view

. A cause of action arises for the government’s una uthorized use of a patent owner’s claimed invention under 28 U.S.C. § 1498 (2012). See id. § 1498(a) (“Whenever 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, the owner’s remedy shall b e by action against the United States in the [Claims Court] for the recovery of his reasonable and entire compensation for such use and manufacture.”).
Importantly, the jurisdictional clock for a § 1498 a ction begins to run when the government first uses the claimed invention without authorization and that specific use is not considered continuous in nature for jurisdi ctional purposes. See Starobin v. United States , 662 F.2d 747, 750 (Ct. Cl. 1981) (“ [T] o hold that every use of a patented item during the lifespan of a patent marks the accrual of a new cause of action within the meaning of 28 U.S.C. [§] 2501 ‘[w]ould create a most difficult situation in the accounting stage of patent infringement suits, since it would create a possibility of recovery for u nauthorized use open for an indefinite period on all patented items po ssessed by the defendant.’” (quoting Regent Jack Mfg. Co. v. United States , 337 F.2d 649, 651 (Ct. Cl. 1964))); see also Hyde v. United States , 336 F. App’x 996, 998 (Fed. Cir. 2009 ); Bi ssell v. United States , 41 F. App’x 414, 416 (Fed. Cir. 2002).
Here, the Claims Court found that all allegations co ncerning the government’s first unauthorized use of the patents

- in

- suit began before November 19, 2009. See Appx. at 16

– 17. Our review of the record also reveals thatSACCHETTI v. UNITED STATES 6

John Sacchetti has not alleged that a purportedly infrin ging product was first used by or for the government wit hin the six

- year statute of limitations . The Claims Court, therefore, properly dismissed the patent claims for lack of subject matter jurisdiction.
Finally, as to the trademark claims, the Claims Court correctly held that those claims, if they can be asserted at all, must be brought in a United States District Court. Id. at 18 (citing 15 U.S.C. § 1121(a) (2012)) ; see also 28 U.S.C. §§ 1491

– 1509 (2012) ( setting forth Claims Court’s juri sdiction) . Because the Claims Court is not a court of competent jurisdiction for the trademark claims, it co rrectly dismissed these claims for lack of subject mat ter jurisdiction as well

. C ONCLUSION For the foregoing reasons, we affirm the Claims Court’s decision to dismiss John Sacchetti ’s patent and trademark claims.

AFFIRMED

C OSTS

No Costs.