NOTE: This disposition is nonprecedential.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-CMHIDD, 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, 

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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 request to file a second amended complaint, denying her request to exclude an expert, granting defendant United 

States Patent and Trademark Office’s (“PTO”) partial motion to dismiss Bhagat’s causes of action unrelated to patentability, 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 Application No. 13/877,847 (the “Application”). The Application claims are directed to nutritional formulations 

containing omega-6 fatty acids and antioxidants, which the 

Application describes as contained “in any orally acceptable form, including, capsules, tablets, liquid formulations, 

or whole foods” and administered orally. The Application 

claims a “packaged product” where “the intermixture of 

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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 antioxidants 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% calories 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: vegetable 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 restricting the total daily intake of any of the claimed nutrients.” 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 individuals based on dietary preferences and guidelines “wherein 

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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 included in the program for daily consumption by the individual.” 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 Application for obviousness and rejected claims 82 and 99 for failing 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 description and affirmed the rejection for obviousness on the merits.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. & Trademark 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 treatment 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 Bhagat 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.

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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 disclosed packaged formulations of omega-6 fatty acids, Vitamin 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 Application’s claimed dosages obvious. Id. Factors discussed 

in Morris as impacting the preparation of formulations include 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 different sources—was rendered obvious from other expert disclosures teaching the mixtures of different nutrient 

sources. Id. at *2 (“The only difference the Board found 

between Morris and [the Application’s] claimed formulation was an explicit disclosure of using nutrients from different sources . . . . [which] would have been obvious in 

light of another expert’s teachings of oil blends from different 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 addition to alleging that the PTO erroneously rejected her patent claims, Bhagat asserted entitlement to general 

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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 limited to her patent,” tortious harassment, and a mandamus 

compelling the PTO to issue the Application’s rejected patent claims. Am. Compl. at ¶¶ 64–84, Bhagat v. USPTO, 

(No. 1:20-cv-01515), ECF 13; Bhagat v. U.S. Pat. & Trademark 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 Congress has expressly waived it. Id.

The district court explained that “Congress has not 

waived its sovereign immunity for money damages in actions 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 jurisdiction 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 

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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 harassment 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 violated 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 assertions” that could not survive the PTO’s motion to dismiss. 

Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Similarly, the district court found that Bhagat’s allegation that 

the PTO violated her constitutional rights was not a plausible claim because she identified neither the violative action 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 sovereign immunity unequivocally expresses that the right exists in the authorizing statute. Id. The district court held 

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8 BHAGAT v. PTO

that the remaining patent claim, for which Congress 

waived sovereign immunity under Section 145, did not provide 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 Bhagat’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 enlargement of discovery, arguing that the PTO’s “longwinded 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 conference to extend time for expert rebuttals and enlarge discovery 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 disclosing 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 December 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. 

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BHAGAT v. PTO 9

expert witness due to “numerous conflicts of interest, and 

his opinions and testimony [being] neither relevant nor reliable 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-cv01515), ECF 66. 

On December 16, 2022, the district court issued an order addressing Bhagat “constantly emailing and calling the 

[c]ourt requesting various forms of relief despite being informed by the [c]ourt, on more than one occasion, that written 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 Communications 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 December 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 Order”). 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 concluding that Bhagat’s substantive request for extension of 

time for expert rebuttal reports, which was the topic of her 

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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 notice’ 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 reschedule 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 Discovery, 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 discovery until November 1, 2022, despite discovery opening on 

August 11, 2022, she did not show good cause for her extension request. Id. The district court was also unpersuaded by Bhagat’s arguments that the PTO has more 

resources than she does, as it noted there is often a disparity in resources among parties. Id. Thus, it rejected her 

3 Bhagat filed a petition to the United States Supreme 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 Bhagat’s decision to wait to begin discovery until after the outcome of her petition to the Supreme Court was a legal 

strategy that did not entitle her to an extension for discovery. Order on Mot. for Extension of Discovery, Bhagat v. 

USPTO, (No. 1:20-cv-01515), ECF 77.

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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 “objections go to the weight of the expert’s testimony, not admissibility.” 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 January 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 motion 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 patentineligible 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 interlocutory 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 

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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 natural 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 combination 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 recited 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 collectively provide 1 to 40 g of omega-6 merely encompasses a 

product of 100 g of almonds broken into 5 g increments. Almonds also contain the phytochemicals, lipids, antioxidants, 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 almonds with other nuts.”). The district court also found that 

claim 112, which “deals with a computer system that implements the method of preparing the product” was directed 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 phenomenon or abstract idea into a patent-eligible invention, the 

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BHAGAT v. PTO 13

district court concluded that all the remaining limitations 

recited well-known activities such as conventional packaging practices, crushing almonds into a powder, and “administering,” “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, dietary 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 computer 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 Application 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. Anthony 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 “preparing and administering a packaged dietary formulation 

comprising omega-6 fatty acids, Vitamin E, and polyphenols” as well as “dosages of omega-6 fatty acids and Vitamin 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 nutrients 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 

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14 BHAGAT v. PTO

her contention that Morris teaches away from the Application claims. Id. Finally, the district court found that Bhagat’s argument that the prior art was not relevant because 

it did not address the same problem solved by her Application claims was unconvincing because “the prior art [was] 

from the same field of endeavor in nutritional formulations.” 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 Second 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, denying her challenge to the admissibility of Dr. Harris’s testimony, 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 misconduct 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 circuit; here, the Fourth Circuit, which reviews these 

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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 Carolinas, 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 testimony.”).

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 circuit. 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. Perkins 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 reviews 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 

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16 BHAGAT v. PTO

reviews district court determinations of whether summary 

judgment was premature for an abuse of discretion. Harrods 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 discovery, 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 allow 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 themselves. The district court did not err as a matter of law in 

dismissing Bhagat’s claims for damages, takings, constitutional 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 management 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 notified Bhagat that the proper procedure for requesting relief 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 actions did not amount to “excusable neglect” that could justify her untimely extension motion. Symbionics Inc. v. 

Ortlieb, 432 F. App’x 216, 219–20 (4th Cir. 2011) (“[A] district court should find excusable neglect only in the extraordinary cases where injustice would otherwise result.” 

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BHAGAT v. PTO 17

(emphasis in original)). Further, the district court did not 

abuse its discretion in finding that Bhagat failed to demonstrate good cause to extend discovery because she waited 

three months from the opening of discovery to send her discovery requests. Cook v. Howard, 484 F. App’x 805, 815–

16 (4th Cir. 2012) (concluding that the district court did not 

abuse its discretion by failing to find good cause where the 

party demonstrated a lack of diligence by waiting months 

between filing suit and seeking discovery).

Second, the district court did not abuse its discretion 

by requiring Bhagat to file written motions to request relief 

orders, nor did it violate due process with its rule that pro 

se parties must submit written motions rather than electronic filings. The district court’s local rule, E.D. Va. Local 

Civil Rule 7(F), requires that parties file written briefs 

with all motions to request relief from the court, and E.D. 

Va. Local Civil Rule 1(A) in conjunction with the E.D. Va. 

Electronic Case Filing Policies and Procedures Manual requires pro se parties to file using paper rather than 

through electronic filing. E.D. Va. Local Civ. R. 7(F), 1(A); 

U.S. Dist. Ct. E.D. Va., Electronic Case Filing Policies and 

Procedures Manual, at 12, 23 (Revised Sept. 23, 2020), 

https://www.vaed.uscourts.gov/sites/vaed/files/ECF-Manu 

al%2012-17-2021.pdf. Bhagat argues that Rule 7(F) conflicts with FRCP 6(b)(1)(A); however, that rule merely permits the court to grant extensions without motion and 

therefore does not conflict with the local rule’s requirement

that applies in the absence of such a discretionary exception. See Fed. R. Civ. P. 6(b)(1)(A); Lujan v. Nat’l Wildlife 

Fed’n, 497 U.S. 871, 896 n.5 (1990) (explaining that a court 

may, using its discretion, grant a request for an extension 

of discovery even without motion or notice). In fact, under 

another local rule, the district court has discretion to waive 

the requirement for a written motion in some circumstances, which further demonstrates that the local rules 

align with the discretionary nature of FRCP 6(b)(1)(A). 

E.D. Va. Local Civ. R. 26(B). 

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18 BHAGAT v. PTO

Similarly, it was not a due process violation for the district court to require Bhagat to comply with its rule that 

pro se parties may not use electronic filing, because she has 

not identified that she has a “right” to electronic filing, nor 

has she established that she suffered lack of notice or opportunity to be heard. See In re Hunter, 600 F. App’x 126, 

127 (4th Cir. 2015) (“[Plaintiff] cite[d] neither statutory law 

nor judicial precedent demonstrating a clear right to file 

electronically.”); J.G. Peta, Inc. v. Club Protector, Inc., 65 

Fed. App’x 724, 728 (Fed. Cir. 2003) (finding no constitutional right to submit motions in a particular format);

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 546 

(1985) (“The essential requirements of due process . . . are 

notice and an opportunity to respond.”). Bhagat alleges 

that the district court usurped approximately twelve days 

of her time by requiring paper filings, which led to her delay in completing discovery, impeded her ability to oppose 

summary judgment, and delayed her filing her motion to 

amend her complaint a second time. Appellant’s Br. at 27. 

However, Bhagat’s delays were primarily caused by her decision to wait three months to begin discovery and, similarly, she did not move for leave to file a second amended 

complaint until over a year and a half after her first 

amended complaint was partially dismissed and after filing notice of appeal to this Court. See Order Granting Defendant’s Partial Mot. to Dismiss Plaintiff’s First Am. 

Compl., Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 26 

(07/22/2021); Mot. for Leave to File Second Am. Compl., 

Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 113 

(03/15/2023); Notice of Appeal, Bhagat v. USPTO, (No. 

1:20-cv-01515), ECF 81 (01/13/2023). Thus, the district 

court did not violate due process by requiring Bhagat to file 

electronically where she has not shown any constitutional 

right to do so or by rejecting her argument that she had no 

notice or opportunity to be heard because of the district 

court’s requirement.

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BHAGAT v. PTO 19

Third, the district court did not abuse its discretion 

when it denied Bhagat’s motion to exclude Dr. Harris’s testimony because the district court correctly noted that Bhagat’s complaints about Dr. Harris’s testimony went to the 

weight, rather than admissibility, of that testimony. See 

Bresler v. Wilmington Trust Co., 855 F.3d 178, 195–96 (4th 

Cir. 2017) (finding it was not an abuse of discretion for the 

district court to decline to exclude an expert’s testimony 

under Daubert where the challenges to the testimony went 

to weight and credibility rather than admissibility). Daubert challenges should be to the reliability and relevance of 

the expert’s principles and methodology rather than to the 

expert’s conclusions. Daubert v. Merrell Dow Pharma., 

Inc., 509 U.S. 579, 595 (1993). Bhagat did not challenge 

Dr. Harris’s principles or methodology; rather, she sought 

disqualification based on his “significant financial interest” 

in preventing the Application from being granted and his 

purported misinterpretation of the prior art and the law. 

Mem. in Supp. of Mot. to Disqualify Dr. Harris at 3, 7, Bhagat v. USPTO, (No. 1:20-cv-01515), ECF 66. Bhagat’s argument of bias goes to Dr. Harris’s credibility, and her 

argument that Dr. Harris mischaracterized the prior art 

and the law goes to the weight of his evidence; none of her 

challenges are to the evidence’s admissibility and thus the 

district court did not abuse its discretion in denying her 

motion to exclude Dr. Harris’s testimony.

Fourth, it was not an abuse of discretion for the district 

court to deny Bhagat’s motion for leave to file a second 

amended complaint because she does not dispute that the 

motion was delayed and puts forth no evidence that her delay would not prejudice the PTO to permit her to amend 

her complaint after discovery had closed and judgment for 

the PTO entered. See Mayfield v. National Ass’n for Stock 

Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012) 

(finding the district court did not abuse its discretion in 

denying a motion to amend a complaint filed over two and 

a half years prior when significant discovery had occurred); 

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20 BHAGAT v. PTO

see also Matrix Capital Mgmt. Fund, LP v. BearingPoint, 

Inc., 576 F.3d 172, 193 (4th Cir. 2009) (“[T]he further the 

case progressed before judgment was entered, the more 

likely it is that the amendment will prejudice the defendant . . . .”). 

Fifth and finally, it was not reversable error for Judge 

Hilton and Magistrate Judge Davis to decline to recuse 

themselves from the case. Bhagat did not request that either judge do so at any point before the district court; thus, 

she raises this issue for the first time on appeal. The only 

arguments that Bhagat puts forth to establish that the 

judges were biased are that their rulings were all “substantially against” Bhagat and that “the court silenced [Bhagat] in hearing . . . and pressed her to withdraw the 

action.” Appellant’s Br. at 66–67 (citing J.A. 9922–48; J.A. 

9932). These arguments are insufficient to establish a substantial interest for either judge that would create a temptation that would lead the average judge to be biased. 

Aetna Life Ins. Co. v. Lavoie, 106 S. Ct. 1580, 1587 (1986); 

see also Litkey v. United States, 510 U.S. 540, 555 (1994)

(“[J]udicial rulings alone almost never constitute a valid 

basis for a bias or partiality motion” and “judicial remarks 

during the course of a trial that are critical or disapproving 

of, or even hostile to, counsel, the parties, or their cases, 

ordinarily do not support a bias or partiality challenge.”). 

Thus, none of the district court actions in managing 

discovery or trial procedure constituted an abuse of discretion or a violation of the due process clause.

2. Dismissal

The district court did not err in dismissing Bhagat’s 

damages, takings, and tortuous harassment claims for lack 

of jurisdiction or in dismissing her causes of action for misconduct, violation of a constitutional right, and entitlement 

to mandamus relief for failure to state a claim on which 

relief can be granted. 

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BHAGAT v. PTO 21

Bhagat’s claim for general damages and her claim for 

damages under the Takings Clause are claims against the 

United States for money, which fall under the Tucker Act. 

28 U.S.C. § 1491. The Tucker Act waives sovereign immunity by granting jurisdiction to the Court of Federal 

Claims over claims against the United States “for liquidated or unliquidated damages in cases not sounding in 

tort.” Id. District courts have concurrent jurisdiction over 

these claims only when the claims do not exceed $10,000; 

otherwise, the Court of Federal Claims has exclusive jurisdiction. E. Enters. v. Apfel, 524 U.S. 498, 520 (1998); Suburban Mortg. Assoc., Inc. v. U.S. Dep’t of Hous. & Urban 

Dev., 480 F.3d 1116, 1121 n.8 (Fed. Cir. 2007) (explaining 

that the Court of Federal Claim’s exclusive jurisdiction for 

money damages over $10,000 comes from Congress not 

granting any other court jurisdiction over these claims and 

the “Little Tucker Act” that gives district courts concurrent 

jurisdiction over Tucker Act claims that do not exceed 

$10,000) (citing 28 U.S.C. § 1346(a)(2)).4 It is undisputed 

4 Contrary to Bhagat’s contentions, this jurisdictional scheme has not been overruled by the Supreme 

Court, and the cases that Bhagat cites for this proposition 

do not support her argument. Appellant’s Br. at 20–21 (citing Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019) 

(removing the “state-litigation requirement” for takings 

claims against local governments that required the takings 

claim to be brought in state court before federal court); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 

U.S. 308, 312–14 (2005) (finding federal question jurisdiction over a state law claim that involved contested issues 

of federal law); Duke Power Co. v. Carolina Env’t Study 

Grp., Inc., 438 U.S. 59, 71 n.15 (1978) (finding jurisdiction

in a district court under Section 1331(a) where the party 

did not seek compensation for a takings claim, which the 

Court clarified would be properly brought in the Court of 

Claims, but instead requested a declaratory judgment). 

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22 BHAGAT v. PTO

that Bhagat seeks over $10,000 in damages; thus, the district court did not err in finding it lacked jurisdiction over 

her general damages claim and damages under the Takings Clause claim.

Similarly, there is no waiver of sovereign immunity for 

claims for money damages under 28 U.S.C. §§ 1331, 1338, 

or 35 U.S.C. § 145 because none of these statutes contain 

express and unequivocal waivers of sovereign immunity. 

United States v. Testan, 424 U.S. 392, 399 (1976) (stating 

that waivers of sovereign immunity must be expressed unequivocally). Bhagat fails to point to an express waiver of 

sovereign immunity in any of the relevant statutes. Additionally, the PTO is not, as Bhagat contends, a “sue or be 

sued” agency that operates similarly to a private corporation, and there is no “sue or be sued” clause in the Patent 

Act. See, e.g., 35 U.S.C. § 1. 

The district court was also correct to dismiss Bhagat’s 

allegations of misconduct, violations of constitutional 

rights, and entitlement to mandamus relief for failure to 

state a claim on which relief could be granted because none 

rise above conclusory allegations. 

To support her argument that the district court erred 

in dismissing her claims for misconduct, constitutional violations, and entitlement to mandamus relief, Bhagat 

points to numerous portions of her Amended Complaint 

and essentially argues that she had a constitutional right 

to have her Application issue as a valid patent and that the 

PTO’s refusal to do so was a result of its bad faith and misconduct. Appellant’s Br. at 22 (citing Am. Compl. at ¶¶ 2–

3, 11, 13, 36–37, 40–41, 45–46, 48–49, 55, and 56–63, 

Prayer for Relief (b), (c), (d), and (f)). The portions of the 

Amended Complaint that Bhagat points to merely critique 

the PTO for rejecting her claims and the PTAB for maintaining most of those rejections, and at no point does Bhagat identify specific false statements or actions of 

misconduct from the PTO or cite to any portion of the 

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BHAGAT v. PTO 23

Constitution to support the PTO’s alleged violation of her 

constitutional rights. Further, for mandamus relief, Bhagat failed to plead that she had a clear right to have her 

Application issued as a valid patent and that there was no 

alternative relief available—particularly because Bhagat 

included claims for relief under § 145 in her complaint, acknowledging that alternative relief existed. Am. Compl. 

Prayer for Relief (c). Thus, the district court did not err in 

finding that Bhagat failed to state a claim on these issues. 

Finally, Congress did not clearly provide a right to a 

jury trial in 28 U.S.C. §§ 1331, 1338, or 35 U.S.C. § 145, 

and thus the district court correctly struck Bhagat’s request for a jury trial. See Lehman v. Nakshian, 453 U.S. 

156, 160–63 (1981) (“[I]f Congress waives the Government’s immunity from suit . . . the plaintiff has a right to a 

trial by jury only where that right is one of ‘the terms of 

[the Government’s] consent to be sued’. . . . The appropriate inquiry, therefore, is whether Congress clearly and unequivocally departed from its usual practice in this area, 

and granted a right to trial by jury.”) (quoting United 

States v. Testan, 424 U.S. 392, 399 (1976); United States v. 

Mitchell, 445 U.S. 535, 538 (1980)). 

B. Summary Judgment on Patent Ineligibility 

The district court did not err as a matter of law in denying Bhagat’s motion to strike the PTO’s motion for summary judgment or in granting the PTO’s motion for 

summary judgment. 

1. Denial of Bhagat’s Motion to Strike 

It was not an abuse of discretion for the district court 

to determine that the PTO’s summary judgment motion 

was not premature. See Harrods, 302 F.3d at 244 (“We review for abuse of discretion the district court’s refusal to 

allow [a party] the opportunity to engage in discovery prior 

to the entry of summary judgment.”). 

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24 BHAGAT v. PTO

The Fourth Circuit makes clear that “[i]f a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is 

to file a Rule 56(f) affidavit” explaining that more time for 

discovery is needed for that party to oppose the motion for 

summary judgment. Id. While courts have, in some cases, 

found that summary judgment was premature without the 

opposing party filing a Rule 56(f) affidavit, in general, “the 

failure to file an affidavit under Rule 56(f) is itself sufficient 

grounds to reject a claim that the opportunity for discovery 

was inadequate.” Id. (quoting Evans v. Techs. Applications 

& Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (internal quotations removed)). Here, Bhagat does not dispute that she 

failed to file a Rule 56(f) affidavit. Further, this is not a 

case where “the nonmoving party, through no fault of its 

own, has had little or no opportunity to conduct discovery,” 

which can sometimes justify a finding that summary judgment was premature without a Rule 56(f) affidavit, because

Bhagat has had ample time to complete discovery and, as 

previously discussed, chose to wait three months to begin 

pursuing discovery. Id. Thus, the district court did not 

abuse its discretion in denying to Bhagat’s motion to strike 

the PTO’s motion for summary judgment as premature.

2. Grant of Summary Judgment

Further, the district court correctly granted the PTO’s 

unopposed motion for summary judgment, since there were 

no disputed issues of material fact to contradict the finding 

that the Application claims were patent ineligible under 

Section 101 and that the pending claims were unpatentable under Section 103. Bhagat did not file an opposition to 

the PTO’s summary judgment motion and instead relies on

her briefing in support of her motion to strike to argue that 

she raised issues of disputed fact. Appellant’s Br. 49–50. 

However, Bhagat does not identify a single issue of disputed fact in her motion to strike briefing; instead, she

merely included the conclusory statement that “the record 

is rife with other facts [besides Dr. Harris’s testimony that 

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BHAGAT v. PTO 25

Bhagat moved to exclude] that are in serious dispute.” 

Mem. in Supp. of Mot. to Strike at 2, Bhagat v. USPTO

(No. 1:20-cv-01515), ECF 91. Thus, Bhagat has put forth 

nothing to contradict the PTO’s account of the undisputed 

facts in its summary judgment motion. See S.E.C. v. Farkas, 557 F. App’x 204, 207 (4th Cir. 2014) (holding that the 

court is allowed to treat the movant’s facts as undisputed 

when the nonmovant fails to dispute the movant’s assertions of fact).

The district court therefore did not err in granting the 

PTO’s motion for summary judgment that the Application 

claims are patent ineligible under Section 101, or in the alternative, that the pending claims are obvious under Section 103.

The district court correctly found that the Application 

claims were directed to a product of nature or abstract idea 

under Alice step one and that no additional claim elements 

transformed the ineligible subject matter into a patent-eligible invention. Alice, 573 U.S. at 217; Mayo Collaborative 

Servs. v. Prometheus Lab’y, Inc., 566 U.S. 66, 71 (2012). 

Bhagat put forth no evidence to contradict the PTO’s assertion that the claimed nutritional formulations were the 

same combination of nutrients found naturally in almonds; 

on appeal, her only contention is that the Application expressly disclaims almonds when it says, “wherein omega-6 

fatty acid(s) and antioxidant(s) are not any single specific 

variety of a vegetable, a fruit, a nut, or a seed.” Appellant’s 

Br. at 54 (quoting Application claim 82). However, limiting 

the form of the servings of the nutritional formulations to 

require a mixture of fatty acids and antioxidants—rather 

than “any specific variety of a vegetable, a fruit, a nut, or a 

seed”—does not change the undisputed fact that the nutritional compositions Bhagat seeks to claim exist in nature. 

Bhagat also does not dispute that claim 112 is directed to 

the abstract idea of meal planning. Appellant’s Br. 52–57. 

Thus, the district court did not err in finding that the 

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26 BHAGAT v. PTO

Application claims were directed to a product of nature and 

an abstract idea. 

Bhagat also fails to argue that the additional claim elements such as packaging, labeling, administering, preparing, and computer-automating are not conventional 

activities that are able to transform the Application into a 

patent-eligible invention. Instead, she simply asserts that 

the “claims as a whole are not well-understood” and relies 

on the absence of a Section 102 rejection for lack of novelty 

for this proposition. Appellant’s Br. 56–57. This is insufficient to preclude the district court from finding on summary judgment that the additional limitations were wellunderstood and thus insufficient under Alice step two to 

turn the patent ineligible subject matter into a protectable 

invention. See Genetic Techs. Ltd v. Merial L.L.C., 818 

F.3d 1369, 1376 (Fed. Cir. 2016) (“[T]he inventive concept 

necessary at step two of the Mayo/Alice analysis cannot be 

furnished by the unpatentable law of nature (or natural 

phenomenon or abstract idea) itself.”); PersonalWeb Techs. 

LLC v. Google LLC, 8 F. 4th 1310, 1318 (Fed Cir. 2021) 

(“[A] new abstract idea is still an abstract idea.”). Thus, 

the district court correctly found that the Application 

claims were ineligible for patent protection under Section 

101.

Finally, the district court’s conclusion that the Application’s pending claims should alternatively be rejected on 

Section 103 grounds was proper. Since Bhagat did not oppose the PTO’s motion for summary judgment or contradict 

any of the PTO’s undisputed facts, it was not erroneous for 

the district court to find that the prior art’s disclosure of 

the nutritional formulations in the Application claims in 

overlapping ranges established a presumption of obviousness that Bhagat failed to overcome. The prior art discloses 

the same nutrients claimed in Bhagat’s Application claims 

in overlapping dosages, and she fails to put forth facts that 

would establish teaching away or unexpected results. Bhagat provided no evidence in her motion to strike that the 

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BHAGAT v. PTO 27

prior art taught away or led to unexpected results, and on 

appeal argues that the presence of some formulations in 

Morris in different dosages of the nutrients taught away 

and relies on conclusory statements that the results were 

unexpected. Bhagat’s belated arguments are insufficient 

to preclude summary judgment. 

CONCLUSION

For the reasons stated above, we hold that the district 

court did not abuse its discretion in issuing any of the challenged orders, did not err in dismissing Bhagat’s non-patent claims, and did not err in denying Bhagat’s motion to 

strike the PTO’s motion for summary judgment or in granting summary judgment in favor of the PTO. 

AFFIRMED

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