NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

PROBIR KUMAR BONDYOPADHYAY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2020-2091

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:19-cv-01831-MBH, Senior Judge Marian Blank 

Horn.

______________________

Decided: March 11, 2021

______________________

PROBIR KUMAR BONDYOPADHYAY, Houston, TX, pro se.

 JOSHUA MILLER, Commercial Litigation Branch, Civil 

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

SCOTT DAVID BOLDEN, JEFFREY B. CLARK, GARY LEE 

HAUSKEN.

 ______________________

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2 BONDYOPADHYAY v. US

Before PROST, Chief Judge, LOURIE and REYNA, Circuit 

Judges.

PER CURIAM.

Dr. Probir Kumar Bondyopadhyay appeals from a decision of the United States Court of Federal Claims (the 

“Claims Court”) dismissing his complaint against the 

United States. He alleged a “violation” of U.S. Patent 

6,292,134 (the “’134 patent”), a patent infringement-based 

taking by the government, and fraud. See Bondyopadhyay 

v. United States, 149 Fed. Cl. 176, 179–83 (2020) (“Decision”). Because the court correctly concluded that the 

claims were barred by res judicata or for lack of jurisdiction, we affirm.

BACKGROUND

Dr. Bondyopadhyay filed a complaint in the Claims 

Court on November 27, 2019, alleging that the United 

States “violat[ed] [his] Exclusive Right for Limited Times,”

the ’134 patent. Decision at 179. The ’134 patent relates 

to a “geodesic sphere phased array antenna system” for 

“multi-satellite tracking and communications.” ’134 patent, Abstract, col. 3 ll. 3–6. Dr. Bondyopadhyay accused

the government of a “violation of Exclusive Right for 

Limited Times of an Inventor, Owner, U.S. Citizen [which 

is] a U.S. Constitutional Order that can NOT be dismissed 

by any Article 3 U.S. Courts or Article 1 U.S. Courts, created under Section 8, Clause 9.” Decision at 179 (emphasis 

in original). Dr. Bondyopadhyay stated that the government “has taken the livelihood of this Independent Inventor

for a prolonged period of eleven years and 23 days and continues to remain indifferent towards this Constitutional 

Order for a long time.” Id. at 182 (emphasis in original). 

Dr. Bondyopadhyay further argued that the government 

committed “acquisition of Innovation fraud under Title 15 

USC section 638(a) and 638(b)” and “honors [a] false inventor.” Id. at 179, 182–83 (original formatting omitted). In 

the complaint, Dr. Bondyopadhyay did not expressly focus 

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BONDYOPADHYAY v. US 3

on a specific device as infringing the ’134 patent claims. Id.

at 187. He instead referred to government technology that, 

in 2014, he accused of infringing the ’134 patent. Id.

This is the second time that Dr. Bondyopadhyay has 

appealed to this court regarding the ’134 patent. See Bondyopadhyay v. United States, 748 Fed. App’x 301 (Fed. Cir. 

2018) (“Bondyopadhyay I Appeal”), aff’g Bondyopadhyay v. 

United States, 136 Fed. Cl. 114 (2018) (“Bondyopadhyay 

I”). On February 23, 2014, Dr. Bondyopadhyay filed a complaint in the Claims Court accusing the United States Air 

Force of infringing the ’134 patent by “using and manufacturing a portion of a phased antenna array system.” Bondyopadhyay I at 116. The accused device at issue in that 

case was “the Ball Advanced Technology Demonstration 

antenna.” Id. at 118–19.1 On March 20, 2015, the court

granted the government’s partial motion to dismiss his 

claims for pre-January 11, 2008 damages as time barred by 

the six-year statute of limitations set forth in 28 U.S.C. 

§ 2501 and any claims that arose after the ’134 patent expired on September 18, 2009. See Bondyopadhyay v. 

United States, No. 14-147C, 2015 WL 1311726, at *7 (Fed. 

Cl. Mar. 20, 2015). The court also dismissed Dr. Bondyopadhyay’s Fifth Amendment takings claim. See id. at *6.

After the claim construction phase, the Claims Court

granted the government’s August 23, 2017 motion for summary judgment. See Bondyopadhyay I at 120–21, 124. The 

court found that the accused device did not infringe the 

’134 patent literally or under the doctrine of equivalents. 

See id. On appeal, this court determined that the Claims 

Court “correctly granted summary judgment of 

1 We previously discussed the ’134 patent and the 

technology at issue in the Bondyopadhyay I Appeal opinion. See id. at 302–05.

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4 BONDYOPADHYAY v. US

noninfringement in favor of the government.” Bondyopadhyay I Appeal at 308.

In the present case, the Claims Court interpreted 

Dr. Bondyopadhyay’s complaint as setting forth three 

claims: (1) infringement of the ’134 patent, (2) a patent infringement-based Fifth Amendment taking, and (3) fraudulent or false conduct. See Decision at 179. Regarding the 

infringement claim, the court determined that Dr. Bondyopadhyay already litigated that issue to a final judgment 

in the Bondyopadhyay I case, so his infringement claims

were barred by the doctrine of res judicata. See id. at 190. 

The court found that Dr. Bondyopadhyay did “not refute 

[the government’s] statements in its motion to dismiss . . . 

that ‘[t]he device made pursuant to this Acquisition Timeline is the Ball Advanced Technology Demonstration antenna,’ or that ‘the exhibits appended to 

[Dr. Bondyopadhyay’s] complaint and in Bondyopadhyay I

make clear that [Dr. Bondyopadhyay] accuses the exact 

same device of infringing the exact same patent.’” Id. at 

189–90 (emphasis in original).

Next, for the same reasons discussed in the Bondyopadhyay I opinion, the Claims Court determined that it 

lacked subject matter jurisdiction to hear Dr. Bondyopadhyay’s patent infringement-based Fifth Amendment takings

claim. See id. at 191 (“[T]o the extent plaintiff alleges a 

taking claim based on the alleged infringement of the ’134 

patent, this court lacks jurisdiction to hear such a claim as 

a Fifth Amendment taking claim.”). Furthermore, the 

court determined that Dr. Bondyopadhyay’s fraud allegations were tort claims which are expressly excluded from 

its jurisdiction by the Tucker Act. See id. at 192; 28 U.S.C. 

§ 1491(a). The court thus determined that it lacked subject 

matter jurisdiction to adjudicate those fraud-based claims. 

See Decision at 192 (“[P]laintiff’s allegations of fraudulent 

or false conduct on the part of the defendant . . . must be 

dismissed for lack of jurisdiction in this court.”).

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BONDYOPADHYAY v. US 5

The Claims Court additionally considered whether 

Dr. Bondyopadhyay’s claims were barred by the applicable 

statute of limitations. See id. at 192–94. As set forth in 28 

U.S.C. § 2501, the statute of limitations for every claim of 

which the court has jurisdiction is six years after such 

claim first accrues. The court determined that, even if the 

statute of limitations could be tolled by 28 U.S.C. § 286 for 

an additional 44 days, “under any plausible formulation of 

the claims in [Bondyopadhyay’s] complaint, the current 

case, which was filed on November 27, 2019, was not filed 

within the applicable statute of limitations pursuant to 28 

U.S.C. § 2501 and 35 U.S.C. § 286.” Id. at 194. The court

thus dismissed Dr. Bondyopadhyay’s complaint, stating

that he “did not offer any evidence or argument as to why 

[his] current case for patent infringement against the 

United States is not materially identical to the patent infringement claims at issue in [his] previous case in this 

court, or why his current case is within the applicable statute of limitations.” Id.

Dr. Bondyopadhyay timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).2

DISCUSSION

We review dismissals by the Claims Court for res judicata or for lack of jurisdiction de novo. Frazer v. United 

States, 288 F.3d 1347, 1351 (Fed. Cir. 2002). A plaintiff 

“bears the burden” of demonstrating jurisdiction. Thomson 

v. Gaskill, 315 U.S. 442, 446 (1942). Although pro se plaintiffs are entitled to a liberal construction of their complaint, 

2 Dr. Bondyopadhyay’s opening brief references Bondyopadhyay v. Sec’y of Defense, No. 4:13-cv-01914 (S.D. 

Tex.). See, e.g., Appellant’s Br. 2–4, 6, 11, 14–16. To the 

extent Dr. Bondyopadhyay challenges that district court’s 

findings in this appeal, we lack jurisdiction over any such 

challenges.

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6 BONDYOPADHYAY v. US

see Haines v. Kerner, 404 U.S. 519, 520–21 (1972), the leniency afforded pro se litigants with respect to mere formalities does not relieve them of jurisdictional requirements, 

Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 

(Fed. Cir. 1987).

Beginning with the patent infringement claims, 

Dr. Bondyopadhyay argues that the doctrine of res judicata

does not apply. See Appellant’s Br. 15. He states that the 

Claims Court “failed to correctly apply” 28 U.S.C. 

§ 1498(a). Id. at 7. Dr. Bondyopadhyay asserts that the 

court misunderstood that the issue is unauthorized use of 

the ’134 patent for 12 years and 229 days—distinguishing 

between the idea of an alleged use of the ’134 patent by the 

government versus a need to identify an accused device

that falls within the scope of any of the ’134 patent claims. 

See Appellant’s Reply Br. 10. Dr. Bondyopadhyay claims 

that a July 30, 2002 letter from the Air Force Legal Services Agency is proof of patent infringement by admission. 

See Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-147C). 

Dr. Bondyopadhyay characterizes the letter as admitting 

to infringement of the ’134 patent by the government’s “experimental use.” Appellant’s Reply Br. 2, 8, 12.

The government responds that Dr. Bondyopadhyay already brought identical infringement claims against the 

same party and litigated those claims to a final judgment, 

so the doctrine of res judicata resolves this issue. See Appellee’s Br. 8, 11–12. The government asserts that 

Dr. Bondyopadhyay’s argument that the antenna system 

could not be fully built during the life of the ’134 patent is 

a new argument and, regardless, one that supports the 

Claims Court’s dismissal of his infringement claims. See 

id. at 9.

Under the doctrine of res judicata, a final judgment on 

the merits precludes the same parties from relitigating 

claims that were raised or could have been raised before. 

See Faust v. U.S., 101 F.3d 675, 677 (Fed. Cir. 1996). 

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BONDYOPADHYAY v. US 7

“Claim preclusion requires (1) an identity of parties or their 

privies, (2) a final judgment on the merits of the first suit, 

and (3) the later claim to be based on the same set of transactional facts as the first claim such that the later claim 

should have been litigated in the prior case.” Bowers Inv. 

Co. v. United States, 695 F.3d 1380, 1384, (Fed. Cir. 2012) 

(citing Ammex, Inc. v. United States, 334 F.3d 1052, 1055 

(Fed. Cir. 2003)).

The Claims Court correctly determined that Dr. Bondyopadhyay’s claims accusing the United States of infringing the ’134 patent were barred by the doctrine of res 

judicata. In Bondyopadhyay I, Dr. Bondyopadhyay accused the government of infringing the ’134 patent through 

development of the Ball Advanced Technology Demonstration antenna. See Bondyopadhyay I at 116. As discussed 

supra, the court found that the government’s antenna did 

not infringe the ’134 patent literally or under the doctrine 

of equivalents and granted the government’s motion for 

summary judgment. See id. at 124. We affirmed. See Bondyopadhyay I Appeal at 308. Regarding the patent infringement claims, there was thus a final judgment on the 

merits. Dr. Bondyopadhyay again here seeks under 28 

U.S.C. § 1498 to assert the same ’134 patent against the 

same party. But regardless how Dr. Bondyopadhyay characterizes his claims, as unauthorized use of the patent or 

depriving him of a constitutional right to make a living, his 

claims boil down to patent infringement, claims that were 

previously adjudicated against him, and he has failed to allege sufficient additional facts to indicate otherwise.3 We 

3 The July 30, 2002 letter, for example is not sufficient. See Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-147C); 

see also Appellant’s Reply Br. 2, 12. The government asserted in the letter that “there is no infringement of the 

’134 patent.” Bondyopadhyay I, ECF 17, Ex. 2 (No. 14-

147C). The government then provided an alternative 

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8 BONDYOPADHYAY v. US

therefore affirm the finding of res judicata for the infringement claims.

We next consider the dismissal of Dr. Bondyopadhyay’s 

takings claim. Dr. Bondyopadhyay argues that the doctrine of res judicata does not apply. See Appellant’s Br. 15. 

He refers to a “Constitutional Order of exclusive right for 

limited times” and requests that this court “restore” his 

“Constitutional right to make a living.” See id. at 7, 11, 13, 

16. The government responds that Dr. Bondyopadhyay already brought an identical takings claim and litigated it to 

a final judgment, so the doctrine of res judicata resolves 

this issue. See Appellee’s Br. 8, 11–12. Our precedent dictates that “the Claims Court does not have jurisdiction to 

hear takings claims based on alleged patent infringement 

by the government.” Golden v. United States, 955 F.3d 981, 

986–88 (Fed. Cir. 2020). “Those claims . . . are to be pursued exclusively under 28 U.S.C. § 1498,” id. at 988, as patent infringement claims. As patent infringement, those 

claims have previously been adjudicated and, as indicated 

above, are now barred under res judicata. 

Finally, to the extent that Dr. Bondyopadhyay challenges the Claims Court’s conclusion regarding his claims 

based on alleged governmental fraud, we conclude that the 

court lacked subject matter jurisdiction. “The plain language of the Tucker Act excludes from the Court of Federal 

Claims[’s] jurisdiction claims sounding in tort.” Rick’s 

Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 

(Fed. Cir. 2008); see U.S.C. § 1491(a)(1). “[F]raud as a 

argument for non-infringement, stating that “even if the 

’134 patent were found to be valid and infringed, we are of 

the opinion that the performance under the five contracts 

falls within the experimental use exception to patent infringement.” Id. (emphasis added). Dr. Bondyopadhyay

failed to explain how the government’s repeated denial of 

infringement in this letter constitutes an admission.

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BONDYOPADHYAY v. US 9

cause of action lies in tort.” Brown v. United States, 105 

F.3d 621, 623 (Fed. Cir. 1997). Thus, the court properly 

dismissed Dr. Bondyopadhyay’s fraud claims for lack of jurisdiction.

Because we conclude that the Claims Court did not err 

in dismissing Dr. Bondyopadhyay’s claims that are at issue 

on appeal for reasons of res judicata or for lack of jurisdiction, we do not need to reach the issue of whether his claims 

were filed outside of the applicable statute of limitations.

Finally, on January 28, 2021, Dr. Bondyopadhyay filed 

a “motion for special leave” to introduce additional information dated March 31, 2020. We normally do not consider 

supplemental material submitted after briefing unless it 

was previously unavailable. See, e.g., Landreth v. United 

States, 797 Fed. App’x 521, 524 (Fed. Cir. 2020). We therefore deny this motion. On February 12, 2021, Dr. Bondyopadhyay filed a memorandum in lieu of oral argument. 

Dr. Bondyopadhyay first restates arguments already presented in his briefs, which we carefully considered. 

Dr. Bondyopadhyay’s also moves for settlement of his financial claim, which is moot in view of our affirmance of 

the Claims Court’s dismissal of his legal claims.

CONCLUSION

We have considered Dr. Bondyopadhyay’s remaining 

arguments and conclude that they are without merit. For 

the reasons discussed above, we affirm the judgment of the 

Claims Court.

AFFIRMED

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