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No. 15-1399C

Filed: November 16, 2016

* * * * * * * + * l. * * + * * *,1 :F* *

*

MARK JOSEPH SACCHETTI and

JOHN STEPHEN SACCHETTI

Plaintiffs.

UNITED STATES,

Defendant,

CYRACOM INTERNATIONAL, LLC,

Thi rd-Party Defendant.

* * *,t * * * * * * *:! * *:t * x **

John Stephen Sacchetti, pro se, Lady Lake, Florida.

Mark Joseph Sacchetti, pro se, Los Angeles, California.

William Joss Nichols, Trial Attorney, Commercial Litigation Branch, Civil Division,

Department of Justice, Washington D.C., for defendant. With him was John J. Fargo,

Director, Intellectual Property Staff, Commercial Litigation Branch, and Benjamin C.

Mizer, Principal Deputy Assistant Attorney General, Civil Division, Department of Justice,

Washington, D.C.

Randall Steven Papetti, Lewis and Roca, LLP, Phoenix, Arizona, for third-party

defendant CyraCom International, LLC.

OPINION

HORN. J.

FINDINGS OF FACT

Pro se plaintiffs John S. Sacchetti and Mark J. Sacchetti filed a complaint in this

court in the above-captioned case on November 19,201s. Plaintiffs begin their complaint

by alleging that they are the owners of two patents, design patent number 382,264 (the

'264 Patent) and utility patent number 5,604,798 (the'798 Patent), as well as a trademark

for the phrase "The You Talk rwo Phone," stating that they are the "full and rightful owners

and creators of a unique original invention we named and subsequen y had trademarked

as 'THE YOU TALK TWO PHONE'@, U.S. PATENT No. DES-382, 264, U.S. UTtLtry

rs.s ?01,{ 1P00 0008 1013 1605

#ngfi.i3l!$.8"

FILED

Nov | 6 2016

U.S. COURT OF

FEDERAL CLAIMS

Pro Se; Statute of Limitations;

Patent Infringement; Gopyright;

Substitution of Pafi After Death.

701,9 l,e0B 0000 1093 101,e r'' 701,{ Ie00 0000 5093 1?51
PATENT No. 5,604,798, U.S. TRADEMARK -SN 741450292*"*.' 1 Plaintiffs then set forth

what they allege is a "list of grievances and formal proofs . . . against THE FEDERAL

GOVERNMENT OF THE UNITED STATES OF AMERICA, and its various agencies,

spanning all three branches, both on and off domestic soil, in addition to all legally bound

private or publicly owned corporate entities, subcontractors, or goods and services

suppliers." Plaintiffs allege that certain "agendas, programs, and . . . ancillary commerce

and operations" of these parties "compromis[ed] a willful and global infringement of

intellectual property's, owned and legally maintained, by Sacchetti, Sacchetti et, al.

!" In particular, plaintiffs allege that the "global manufacturing" of "DUAL-HANDSET

TELEPHONES," which "comprise illegal and inferior'MARKET COPIES' OF 'The You

Talk Two Phone," constituted an "unethical and illegal use of Private Intellectual

Property Rights" by "The United Stafes Federal Governmenf, and awarded

subcontractors." Plaintiffs do not include details as to the dates or nature of the alleged

infringements of their intellectual property in their complaint, but instead appear to allege

that such details are included in letters sent to the President of the United States and the

United states commissioner of Patents, which they attached to their complaint, stating in

their comolaint:

[W'lith reference to the three page plea written to the president Of the

UNITED STATES, and the formal response to that package being answered

in writing along with a Confermation [sic] reference number from THE

WHITE HOUSE at the end of the return letter corespondance by THE

COMMISIONER OF PATENTS,-WE PRAY THE U,S.FEDERAL COURT

OF CLAIMS HEARS OUR CASE, AND FURTHERMORE, ALLOWS US TO

PRESENT OUR PROOFS OF PERSONAL AND PUBLIC RECORD IN

ORDER TO ACHIEVE A JUST END.

Plaintiffs conclude their complaint by alleging, without elaboration, that they are entiled

to "$200'000'000" in damages "FoR THE usE oF pRtvATE pRopERTy AND wtrH

RESPECT TO USC 1498a "

Attached to plaintiffs' complaint are 195 pages comprising, at least, 130 separate

documents. Among these documents are a letter to United states president Barack

Obama and a letter from the Office of the Commissioner for Patents at the United States

Patent and Trademark Office which appear to be the documents plaintiffs reference in

their complaint. The letter to President obama, dated February 23,2013 and signed by

both plaintiffs, begins:

1 All abbreviations, capitalization

grammatical, and spelling choices,

and emphasis, as well as any sentence structure,

are as they appear in plaintiffs'filings.

usual sinqle handset that one misht be accustomed to Eeeinq: Aft;
completing the first successful prototype, we were granted the following

U.S. oatents:

rDUAL TELEPHONE BASE"I U.S.PAT. 0-382264

rTHE YOU TALK TWO PHONE'l U.S. TRADEMARK FOR THE TTTLE

TTELEPHONE SYSTEM W|TH AUTOMATTC VOLUME CONTROLI

u.s.PAT. 5,604,798

[{uTrLrw- PATENT-(SCHEMATIC DTAGRAM) (THEORY OF

OPERATION)l...the gufsl

Plaintiffs then state that their letter "constitutes a citizen's appeal, in order to address

and correct an enormous, 'multi-agency oversight', on behalf of our Federal

Government." The February 23,2013letter to President Obama continues:

Our plea concerns the infringement of intellectual properties, taken and

presently in use by the Federal Government and it's awarded

subcontractors, to aid in the fulfillment of Presidential Mandate #13166,

which states that any and all individuals must be provided an

interpreter, or, what is referred to as a ,,remote, over the telephone

interpreter"', if said individual has a communications barrier due to a

lack of his or her proficiency in spoken English, This extension of The

American Disabilities Act, seeks equality and fair access to all ELp

(English-Language Proficiency) deficient individuals across the entire

range of state and federal governmental services available.

Since these legally mandated services require the use of a"

DUAL HANDSET TELEPHONE" at the site of the language ,,barrier";

and, since our technical utility patent, [TELEPHONE SYSTEM WITH

AUTOMATTC VOLUME CONTROLI U.S. PATENT # 5,604,798-

(encompasses our unique invention called .,THE yOU TALK TWO

PHONE"@ (U.S. REGISTERED TRADEMARK-(encompasses our

original design patent entifled IDUAL TELEPHONE BASEI; U.S. Design

Patent [D-3822641, first granted back in 1993, then suddentv ahd

mysteiously MIA (missing in action), finally resurtacing with differe;t fiting

data, and no valid accountable filing receipts or explanation from oir

prosecuting patent aftomey!

prosecutino patent attornevs; (see 9

rTHE YOU TALK TWO PHONE'@D,

page essay/analysis; entitled--

are dwarfed in comparison to the

enormous commerce carried out by these companies, (AT&T)

?
(Language-Line LLC), and (Cyra-com intl./co./Noiance lnc.l, to whom

the United States Federal Government is in direct and legal partnership

with, as well as numerous other third-party start-ups, which have exploded

onto the scene since 1995 to the present, 2013, thereby comprising a

willfully ignored global and domestic infringement on intellectual

property!

Beinq that all the above mentioned corporate entities. as well as

the Federal l.P. Court circuit are not conducive to the independent

inventor / patent holder, all infrinqinq parties to this dav. continue to

remain untraceable, unaccountable, and by our definition of justice or

fair-play, TOTALLY Unacceptabte!l!!!t! M !

The letter ends with the following "Very Humble, Yet Very Warranted Requests":

1). A non-public, executive demand of fair and just restitution to all

offending or infringing parties, who are proven to have engaged in willful

and gainful commerce on top of exclusive or legal powers to rightfully

control or claim moneys within the laws of rightful term of the private

ownership of intellectual propeny . . . .

2). An Extension and Reinstitution of our patent portfolio . . . .

3). The reprinting of our two granted U.S. patents, as to reflect the true

and factual information, as these patents were both fully maintained,

and fully paid for in good faith!

The letter from the Office of the Commissioner of Patents to plaintiffs is dated July

16, 2013. The letter begins by stating that ptaintiffs' February 23,2013lefter to president

obama had been referred to the United states patent and rrademark office (uspro)

fo_r a response and noting that, in their letter, plaintiffs "request (1) ,restitution to all ott91!ino or infringing parties,'(2)'an extension and reinstitution of [your] patent portfolio,'

and (3) 'the reprinting of [your] two granted U.s. patents, as to reflect the true and factual

information."' (alteration in original). With regard to plaintiffs, first request, the letter states: "the USPTO has no jurisdiction over questions of infringement and tne enforcement of

patents. consequently, the USPTO does not have the authority to enforce your demands

against the parties that you allege have infringed your pateni." with regaid to plaintiffs,

second request, the letter states: "the uspro has no authority to length-en the ierm of a

patent othe-r than 35 usc S 1 s6. . . . The reasons in your letter for requesting an extensron

of your utility patent's term do not appear to fit the criteria ouilined in 35-usc S 156."

Regarding plaintiffs' third request, the letter states:

A filing receipt enclosed with your letter showed a different filing date than

that of your patents. However, the encrosed firing receipt is forlpplication

number 071888,214, and our database indicates that U.S. patent No.
5,604,798 issued from application number 081229,206, which is a different

application that was filed on April 18, 1994. U.S. Design Patent D382,264

issued from application number 291046,496 filed on November 16, 1995.

Among the many other documents included with plaintiffs' complaint are three

documents related to the intellectual properties apparently at issue in the plaintiffs'

complaint and letter to President Obama: the '264 Patent, the '798 Patent, and a

trademark for "The You Talk Two Phone." Plaintiffs include a page from the '264 Patent,

which states that the patent was for a "DUAL TELEPHONE BASE," was filed November

16, 1996, and was issued August 12, 1997. The only claim listed in the '264 patent is for

an "ornamental design for a dual telephone base, as shown and described" in a

description included with the patent. The '264 Patent lists its inventor as Mark J. Sacchetti.

Plaintiffs also include a page from the'798 Patent, which states that the patent

was for a "TELEPHoNE sYsrEM wtrH AUToMATtc voLUME coNTRoL," was fited

April 18, 1994, and was issued February 18, 1997. The abstract contained in the'79g

Patent states: "A You Talk rwo Phone is provided that is a true two handset telepnone

device. . . . The You Talk rwo Phone contains two handsets and circuitry that

automatically adjusts internal amplifier gain to compensate for the extra handset even

when not in use." The'798 Patent lists its inventors as John s. and Mark J. Sacchetti.

The only document plaintiffs include related to their alleged trademark is a Notice

of Abandonment from the United states patent and rrademark office, dated Decemoer

5, 1997. The Notice lists the trademark at issue as "THE you rALK TWo pHoNE" and

the applicant as Mark J. Sacchetti. The notice then states:

THE ABOVE IDENTIFIED TRADEMARK APPLICATION WAS

ABANDONED ON O9/18/1997 FOR THE FOLLOWING REASON:

APPLICANT HAS FAILED TO FILE A STATEMENT OF USE WITHIN THE

STATUTORY PER|oD. (TMDEMARK RULE 2.65(c)).

Plaintiffs also attach to their complaint several documents related to the three

companies mentioned in their letter to president obama: cyracom International, LLC; Language Line, LLC; and AT&T, Inc. with regard to cyracom, plaintiffs provide an

undated document that appears to be a press release or advertisement from cvracom

stating: "ln 1995 cyracoms_breakthrough patented dual-handset phone tecirnorogy

revolutionized the delivery of Over-the-Phone interpretation." Plaintiffs also include what

appears to be press release from cyracom, dated September 26,20e7, stating that "cyracom introduced its first patented dual-handset phone in 1995," which, the document

states, was "now known as clearlink(TM)," and that cyracom had now invented ,,the

industry's first dual-handset cordless phone, clearlink[M) cordless.,' plaintiffs also state

In a separate motion for assignment of pro bono counsel, discussed below, that, in ,,the

year 2008,"
John Sacchetti, now permanently disabled and receiving social security

disability insurance, walks into St, Vincent Catholic Hospital ilL-9:1A19919.s

Ca.foraMedicarerequiredcolonoscopy,,and'behold'THE'CYRACOMB LIJ E,. D IJ AL.H A N D S ET.,S U B S C RI B E RLI N E " STYLE.''

ietepnone.rwo..oF..THEM..tN A LARGE METRaPoLTAN [sic]

HOSPITAL FACILITY!!

The document states that John Sacchetti "fell over in shock" upon seeing the device'

rin"rrv, praintitrs provide a letter, dated February 24,2010, from Mark and John Sacchetti

to thsC'EO of CyraCom, listing the full patent numbers for the '264 and '798 Patents and

stating, presumably in reference to these patents: "lt has come to our attention that your

"ompiny 

is utilizing equipment and has been conducting and promoting commerce with

said equipment for quite sometime now."

with regards to Language Line, plaintiffs attach to their complaintwhat appears to

be a screensh-ot from Language Line's website, dated october 26, 2009, announcing a

"new telephone with dual handsets for a clear, three-way interpreter conversation." The

announcement refers to the device as the "Language Line{D Phone "

Regarding AT&T, plaintiffs provide a copy of a letter, dated May 3, 1994, from Mark

Sacchetti to RiAf, in which Mark Sacchetti proposed to grant AT&T "exclusive

manufacturing rights" to an undisclosed invention of Mark and John Sacchetti that they

believed wou-to re "a product comparable to the changing of LP's to the compact disc."

Plaintiffs also provide a June 28, 1994 letter from Mark Sacchetti to AT&T's Public

suggestions Analysis office stating that the letter was "introduc[ing]" AT&T to the

Sa6ifretti brothers; invention, "'The You Talk Two Phone'the world's very first, low-cost,

high quality [single-line, dual handset, self-powered] consumer telephone unit." (brackets

in-original) The letter included descriptions of the phone's features, a picture of the

device, and an offer to make AT&T the plaintiffs' "exclusive business partner in the

manufacture and marketing" of the device. Plaintiffs also include AT&T's August 10' 1994

response letter, which stated that the plaintiffs' "submittal does not contain anything novel

which would be of value to AT&T." The lefter elaborated: "[wie are familiar with the type

of telephone which you have described. However, the results of our most recent market

research studies do not indicate a sufficient level of interest in such an offering." An

additional letter from Mark Sacchetti to AT&T, dated October 12, 1994' is attached to

plaintiffs' complaint, but there is no indication of a further reply from AT&T among the

documents attached to the complaint. In addition, without explanation, plaintiffs also

provide what appears to be an article from the New York Times, dated March 25, 1999,

stating that AT&T had agreed to sell "AT&T Language Line," "its over-the-phone language

interpietation service," and that, after the sale, "Language Line will be a prefened supplier

of interpretation services for AT&T."

Defendant filed an answer to plaintiffs' complaint in which it admitted that USPTO

records indicate that plaintiffs were the inventors of the '264 and '798 Patents and that

Mark Sacchetti was listed as the "owner of the now-abandoned application for regishation

o
of the trademark 'The You Talk Two Phone," while denying that "The You Talk Two

Phone" is currently a USPTO-registered trademark. Defendant also denied plaintiffs'

allegation that the federal government has engaged in illegal use of plaintiffs' intellectual

property rights and asserted a defense to plaintiffs' complaint based on lack of subject

matter jurisdiction in this court. Defendant then moved the court to provide notice to third

parties CyraCom International, LLC, Language Line, LLC, and Legal Interpreting Services

(LlS). According to the government, "CyraCom, Language Line, and LIS may be obligated

to indemnify the government for any damages awarded to Plaintiffs. These companies

have each contracted with the General Services Administration ('GSA') to provide

interpretation services." Also, according to the government, the solicitation pursuant to

which these third parties contracted with the government contains a patent indemnity

clause, and, "[i]n light of Plaintiffs' allegations and the patent indemnity clause . . . the

above-identified companies may have an interest in this action within the meaning of

RCFC 14(bX1)."

Third-party defendant CyraCom International, LLC filed a motion to dismiss

plaintiffs' complaint, followed by an amended motion to dismiss, seeking to dismiss

plaintiffs' complaint for lack of subject matter jurisdiction pursuant to RCFC 12(hX3)

(2016), or alternatively, for failure to state a claim pursuant to RCFC 12(bX6) (2016).

Focusing on plaintiffs' allegation in their February 23, 2013letter to President Obama that

the alleged infringement has been taking place "since 1995," as well as the documents

attached to plaintiffs' complaint showing that CyraCom began offering dual-handset

technology in 1995, CyraCom argues that that the court lacks jurisdiction to hear plaintiffs'

patent infringement claims because the alleged infringement took place more than six

years prior to filing of the complaint and, therefore, "well over" the six year statute of

limitations prescribed by 28 U.S.C. S 2501 (2012). With regard to plaintiffs' trademark

infringement claim, CyraCom argues that they should be dismissed because the United

States Court of Federal Claims lacks jurisdiction to hear claims for trademark

infringement. In the alternative, cyracom argues plaintiffs' complaint should be dismissed

because "Plaintiffs have failed to plead even the basic elements of patent and trademark

infringement. "

The government also filed a motion to dismiss plaintiffs' complaint for lack of

subject-matter jurisdiction pursuant to RCFC 12(hX3), or, alternatively, for judgment on

the pleadings pursuant to RcFc 12(h)(2). In its motion, the government states that it joins

the arguments stated in cyracom's motion to dismiss. According to the government,

plaintiffs' patent infringement claims are barred by the statute of limitations prescribed by

28 U.S.C. S 2501, or, in the alternative, plaintiffs have failed to state a claim for patent

infringement. The government also indicates that the court lacks jurisdiction over plaintiffs'

trademark infringement claim.

In response to the government's motion to dismiss, plaintiffs filed a motion for the

assignment of a pro bono counsel. Although the court participates in a pro bono counsel

referral program for the appropriate cases filed in this court, the court issued an oroer

informing the plaintiffs that the court considered such a referral as premature prior to a
decision on the outstanding jurisdictional motions to dismiss, which raised serious statute

of limitations issues. Moreover, in civil cases, the court does not have an obligation to

appoint counsel to plaintiffs. See Lassiter v. Dep't of Soc. Servs. of Durham Cntv. N.C.,

452 U.S. 18,26-27 (1981) ("[A]n indigent litigant has a rightto appointed counsel only

when, if he loses, he may be deprived of his physical liberty."); see also Pitts v. Shinseki,

700 F.3d 1279, 1283 (Fed. Cir. 2012), cerl. denied, 133 S. Ct. 2856 (2013); Heuss v.

United States,75 Fed. C|.636 (2007) (quoting Lariscevv. United States. 861 F.2d1267,

1270-71 (Fed. Cir. 1988), and noting that the United States Supreme Court has not

recognized a right under the Constitution to appointed counsel in civil cases); Martin v.

United States, 31 Fed. Cl. 756, 757 (1994\ ("The appointment of counsel in a civil case is

not a right, but a privilege justified only by exceptional circumstances.").

Also after the filing of the government and CyraOom's motions to dismiss, the

government and the plaintiffs filed a joint motion to defer their joint preliminary status

report, in which they stated that, "[i]n oraround May 2016, Plaintiff Mark Joseph Sacchetti,

John Sacchetti's brother, passed away." The court ordered plaintiffs to "file a notice with

the court indicating if plaintiffs wish to have Mark Joseph Sacchetti dismissed as a plaintiff

from this case or an executor or executrix appointed in his place to continue in the

litigation." In response to the court's order, on September 12,2016, plaintiffs filed what

they titled a "MOTION TO RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI lN

LITIGATION OF CASE No. 15-1399C. CURRENTLY lN PROGRESS," which stated:

Pursuant to rule 25 (b), (c), of the rules of the U.S.C.F.C., PLAINTIFF JOHN

STEPHEN SACCHETTI, submits to this court a formal request to retain the

estate of deceased brother MARK JOSEPH SACCHETTI to the current

case in progress and do hereby submit along with this formal request, an

original death certificate to the clerk of this court as required.

A certificate of death issued by the county of Los Angeles, California for Mark Joseph

Sacchetti, dated April 19, 20'16, was attached to the motion. The government and thirdpafi defendant CyraCom International, LLC filed responses opposing plaintiffs motion

on the ground that plaintiffs had failed to identify any party to be substituted for Mark

Sacchetti.

Rather than respond to these arguments, on October 3, 2016, plaintiffs filed a

second "MOTION TO RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI," which,

after beginning with the same paragraph as contained in the first motion, stated:

Successor to the deceased party of plaintiff Mark Joseph Sacchetti will be

Mr. Dan Logan . as sole heir to all interests and worldly assets as

bequeathed to Mr. Dan Logan, and by explicit instruction of "The Last Will

And Testamenf" of the late Mark Joseph Sacchetti, (the living will), vests full

and willful joinder, placing his commitment and hence the full scope of all

assets and liabilities pertaining specifically to that estate and its relevant

legal responsibilities. [sic] in continuing litigation, and as such will replace,
and restore, the original 50Yo I 50% partnership arrangement of plaintiffs

oarties.

The motion also states that Mr. Logan has been "given the task and title of 'Executof of

the estate" in Mark Sacchetti's will. Both the government and CyraOom oppose plaintiffs'

new motion on the grounds that the motion fails to show Mr. Logan is a "proper party"

who may be substituted for the deceased under Rules of the Court of Federal Claims

(RcFc) Rule 25(a) (2016)

DtscusstoN

The court turns first to plaintiffs' 'MOTIONISI TO RETAIN THE ESTATE OF

MARK JOSEPH SACCHETTI.' RCFC Rule 25(a) (2016) states: "lf a party dies and the

claim is not extinguished, the court may order substitution of the proper party. A motion

for substitution may be made by any party or by the decedent's successor or

representative." Forthe purpose of Rule 25(a), "[w]hether a person is a proper party is . . .

determined according to state law," and, therefore, "[t]he party seeking substitution must

show that the person to be substituted is a proper representative or successor under state

law." 6 James William Moore, Moore's Federal Practice $ 25.12 (3d ed. 2016) (discussing

Federal Rules of Civil Procedure Rule 25(a), which is identical to RCFC 25(a)). Based on

the documents provided to the court, the relevant state law for the purposes of plaintiffs'

motion to retain is that of California. The address given in plaintiffls second motion for Mr.

Logan indicates that he lives in California, and the purported will of Mark Sacchetti and

the address for Mark Sacchetti listed in filings in this court indicate that he resided in

California prior to his death. Plaintiffs appear to allege that Mr. Logan is both the

representative of Mark Sacchetti's estate and his successor, referring to Mr. Logan in the

second "MOTION TO RETAIN" as the executor of Mark Sacchetti's estate and his sole

heir. Under California law, a person, regardless of whetherthey are named as an executor

in a decedent's will, has no power to administer an estate until the California superior

court has appointed the person a personal representative of the estate and "the person

appointed is issued letters." See Cal. Prob. Code SS 8400(a), (b) (West 2016); see also

id. S 8405 (specifying the form and contents of appointment letters). Because, in this case,

no such letter of appointment, or any other evidence that Mr. Logan has been appointed

the personal representative of Mark Sacchetti's estate by a California court, has been

provided to this court, at this point, this court cannot find that Mr. Logan is a proper

representative of Mark Sacchetti's estate under California law. See Acebal v. United

States, 60 Fed. Cl. 551, 557 (2004) (denying RCFC 25(a) motion for widow who was

listed as executor in deceased plaintiff's will because widow failed to obtain a letter of

administration from state probate court). Similarly, the court cannot find that Mr. Logan is

a proper successor to Mark Sacchetti because plaintiffs have failed to provide any

evidence that Mark Sacchetti's estate has been fully distributed and, hence, that Mr.

Logan is, in fact, legally entitled to the intellectual properties at issue. See Grass Valley

Terrace v. United States, 69 Fed. Cl. 506, 51 1 (2006) ("Requiring thefull distribution of

an estate before a distributee may act as a substitute ensures that the distribution is final

and not subject to any alterations. In addition, it ensures that the substituted pafi is in

I
fact legally entitled to the interests at issue."). Given that no showing that Mr. Logan is a

proper party under RCFC 25(a) has been presented to the court, the "MOTIONIS] TO

RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI'must be denied.

Turning next to the government and CyraCom's motions to dismiss, the court

recognizes that plaintiffs are proceeding pro se, without the assistance of counsel. When

determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by

a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines

v. Kerner, 404 U.S. 519,520-21 (requiring that allegations contained in a pro se complaint

be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'q

denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 9a (2007);

Huohes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429 U.S. 97, 106 (1976),

reh'o denied,429 U.S. 1066 (1977); Matthews v. United States,750 F.3d 1320, 1322

(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, atf d,603 F. App'x 947

(Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[t]here is no duty on the part

of the trial court to create a claim which [the plaintiffl has not spelled out in his [or her]

pleading.""' Lenqen v. United States, 100 Fed. Cl. 317 , 328 (2011) (alterations in original)

(quoting Scoqin v. United States,33 Fed. C|.285,293 (1995) (quoting Clark v. Nat'l

Travelers Life lns. Co.,518 F.2d 1167,1169 (6th Cir. 1975))); see also Bussiev. United

States, 96 Fed. Cl. 89, 94, affd, 443 F. App'x 542 (Fed. Cir. 2011); Minehan v. United

States, 75 Fed. Cl. 249,253 (2007). 'While a pro se plaintiff is held to a less stringent

standard than that of a plaintiff represented by an attorney, the pro se plaintiff,

nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance

of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Huqhes v.

Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff

bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'q and

reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v. United States, 1'19 Fed.

Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities in a pro se plaintiffs

complaint, the court'does not excuse [a complaint's] failures."' (quoting Henke v. United

States,60 F.3d 795,799 (Fed. Cir. 1995)); Harrisv. United States, 113 Fed. C|.290,292

(2013) ("Although plaintiffs pleadings are held to a less stringent standard, such leniency

'with respect to mere formalities does not relieve the burden to meet jurisdictional

requirements."'(quoting Minehan v. United States, 75 Fed. Cl. at 253)).

The government and CyraCom have moved to dismiss plaintiffs' complaint for lack

of subject matter jurisdiction pursuant to RCFC 12(hX3). The Tucker Act, 28 U.S.C. S

1491, grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

't0
28 U.S.C. $ 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United

States (1) founded on an express or implied contract with the United States, (2) seeking

a refund from a prior payment made to the government, or (3) based on federal

constitutional, statutory, or regulatory law mandating compensation by the federal

government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,

289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee

Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en banc denied

(Fed. Cir.2007), cert. denied,552 U.S. 1142(2008); Palmerv. United States, 168 F.3d

13't0, 1314 (Fed. Cir. 1999).

"Not every claim invoking the Constitution, a federal statute, or a regulation is

cognizable under the Tucker Act. The claim must be one for money damages against the

United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.

White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709

F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.

United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. v.

United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must. . . identify a

substantive source of law that creates the right to recovery of money damages against

the United States."); Golden v. United States, 118 Fed. CL764,768 (2014). In Ontario

Power Generation. Inc. v. United States, the United States Court of Appeals for the

Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in

the United States Court of Federal Claims. The court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act's waiver. Second, the Tucker Act's waiver

encompasses claims where "the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum."

Eastport S.S. lCoro. v. United States, 178 Ct. Cl. 599,605-06,] 372F.2d

[1002,] 1007-08 t(1967)l (describing illegal exaction claims as claims "in

which 'the Government has the citizen's money in its pocket"' (quoting

Clappv. United States,127 Ct. C|.505, 117 F. Supp.576,580 (1954))... .

Third, the Court of Federal Claims has jurisdiction over those claims where

"money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a paymentfrom the treasury." Eastport S.S., 372F.2d at 1007.

Claims in this third category, where no payment has been made to the

government, either directly or in effect, require that the "particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.

1392,1 401-02 [1976] ("Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause of action for money damages unless, as the Court

of Claims has stated, that basis 'in itself . . . can fairly be interpreted as

11
mandating compensation by the Federal Government for the damage

sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly refened to as claims brought under a "money-mandating"

statute.

Ontario PowerGeneration. Inc. v. United States,369 F.3d 1298,'1301 (Fed. Cir.2004);

see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon "'can fairly be

interpreted as mandating compensation by the Federal Government."' United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S.392,400

(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United

States v. Mitchell,463 U.S. at 217; Blueport Co.. LLC v. United States, 533 F.3d 1374,

1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting

monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio

Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply

al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims

premised on other sources of law (e.9., statutes or contracts).") "'lf the statute is not

money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal

should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed.

Aviation Admin.,525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv., Ariz. v.

United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.

2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under

the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant's favor. See Erickson

v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge

must accept as true all of the factual allegations contained in the complaint." (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 508 n.1 (2002)))); Fid. & cuar. Ins. Underuriters, Inc. v. United States, BO5

F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteqration. Inc. v. United States.659 F.3d

1 1 59, 1 163 (Fed. Cir. 201 1).

''Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiffs claim, independent of any

defensethatmaybe interposed." Holleyv. United States,124F.3d1462,1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'q

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McCaullev Inv. Grp.. lnc. v. United States, 93 Fed. CL710,

713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the

grounds for the court's jurisdiction," and "a short and plain statement of the claim showing

that the pleader is entitled to relief." RCFC 8(aX1), (2) (2016); Fed. R. Civ. P. B(a)(1), (2)

12
(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v.

Twomblv, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,

"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to

support a claim." Bradlev v. Chiron Corp., 1 36 F.3d 1317, 1322 (Fed. Cir. 1 998); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cn.2007) (Dyk, J.,

concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice

and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981)

("[C]onclusory allegations unsupported by any factual assertions will not withstand a

motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff's factual allegations must'raise

a right to relief above the speculative level' and cross 'the line from conceivable to

plausible."'Three S Consultinq v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting

Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed. Cir.), reh'q

denied (Fed. Cn.2014\. As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and

conclusions' or'a formulaic recitation of the elements of a cause of action will not do.' 550

U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further

factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twomblv, 550 U.S. at 555).

When construed liberally, the plaintiffs' complaint appears to allege that AT&T,

CyraCom, and Language Line, with and/or working on behalf of the United States

Government, infringed two of their patents related to a dual handset phone, the '264 and

the '798 Patents, as well as that one or more of these entities infringed their trademark

for "The You Talk Two Phone." Although the complaint itself does not name the entities

that, along with the federal government, allegedly infringed on plaintiffs' intellectual

properties, three companies, '(AT&T) (Language-Line LLC), and (Cyra-com

intl./co,/Noiance lnc.l," are mentioned in plaintiffs' February 23,2013letter to president

Obama. In the letter, which was attached as an exhibit to plaintiffs' complaint, plaintiffs

appear to allege that these three companies worked in concert with the United States to

infringe on plaintiffs' intellectual property, stating that the three companies are in a "direct

and legal partnership" with the Federal Government and that the "enormous commerce

carried out by these companies" constituted a "a willfully ignored global and domestic

infringement on intellectual property!" Regarding the patent infringement claims,

plaintiffs allege that, and include as exhibits to their complaint excerpts from the '264 and

the '798 Patents to try to show that, they are the inventors and patent holders of a device

they refer to as "The You Talk Two Phone," a telephone that, as described in the '798

Patent, contains "two handsets and circuitry that automatically adjusts internal amplifier

gain to compensate for the extra handset even when not in use." In their complaint,

plaintiffs appear to allege that these patents have been infringed by the United States and its contractors, stating that the "global manufacturing of' 'DUAL-HANDSET

TELEPHONES" constitutes an "unethical and illegal use of Private Intellectual Property

Rights" by "The United Sfates Federa I Governmenl and awarded subcontractors."

Although the excerpts provided by plaintiffs from the '264 and the '798 Patents

demonstrate that they were issued on February 18, 1997 and August 12, 1997,

respectively, plaintiffs allege in their February 23, 2013 letter to President Obama that the

13
patents were actually granted "in 1993, then suddenly and mysteriously MIA (missing in

action)." Plaintiffs conclude their complaint by seeking damages in the amount of

$200,000,000.00 pursuant to "USC 1498a," apparently a reference to 28 U.S.C. S 1498(a)

(2012), which governs claims for patent and copyright infringement against the United

States and its contractors.

The government and CyraCom both argue that plaintiffs' patent infringement

claims should be dismissed for lack of jurisdiction because they are barred by the statute

of limitations set forth in 28 U.S.C. S 2501. Suits against the United States are subject to

a six-year statute of limitations. According to the statute at 28 U.S.C. g 250't:

Every claim of which the United States Court of Federal Claims has

jurisdiction shall be barred unless the petition thereon is filed within six years

after such claim first accrues. . . . A petition on the claim of a person under

legal disability or beyond the seas at the time the claim accrues may be filed

within three years after the disability ceases.

ld. "The six-year statute of limitations set forth in section 2501 is a jurisdictional

requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.

United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh'q en bancdenied (Fed. Cir.2006),

affd, 552 U.S. 1 30 (2008). The United States Court of Appeals for the Federal Circuit has

indicated that a claim accrues ""'when all events have occurred to fix the Government's

alleged liability, entitling the claimant to demand payment and sue here for his money.',','

$an Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting

9gmlsh lndi, ?n Nation v. United States,419 F.3d't355, 1369 (Fed. Cir.2005) (quoting

Martinezv. United States,333 F.3d 1295, 1303 (Fed. Cir.2003), cert. denied,540 U.S-.

1177 (2004))), reh'q en banc denied (Fed. Cir. 2011); see also Floorpro, Inc. v. United

States, 680 F.3d 1377, 1381 (Fed. Cir.2012); Martinez v. United States, 333 F.3d at

1303 ('A cause of action cognizable in a Tucker Act suit accrues as soon as all events

have occurred that are necessary to enable the plaintiff to bring suit, r.e., when 'all events

have occurred to fix the Government's alleged liability, entifling the claimant to demano

payment and sue here for his money."' (quoting Naqer Elec. co. v. United states. 177 ct.

Cl.234,240, 368 F.2d847,851 (1966), motion denied, 184 Ct. Ct. 390, 396 F.2d 977

(1968)); Hopland Band of Pomo Indians v. United States. Bsb F.2d 1573, 1577 (Fed. Cir.

1988); see also Brizuela v. United States, 103 Fed. Ct.635,639, affld, 492F. App,x97

(Fed. cir. 2012), cert. denied 133 s. ct. 1645 (2013). A Judge of the united states court

of Federal Claims has noted that:

It is well-established that a claim accrues under section 2501 ,When,all

events have occurred to fix the Government's alleged liability, entiiling the

claimant to demand payment and sue here for his money.',, Martinez v.

United States,333 F.3d 1295, 1303 (Fed. Cir.2003) (en banc), cert. denied.

540 U.S. 1177 (2004) (quoting NaoerEtec. Co. v. United States,368 F.2d

847,851 (Ct. Cl. 1966)); see also Samish,419 F.3d at 1369. Because, as

noted, this requirement is jurisdictional, plaintiff bears the burden of

14
demonstrating that its claims were timely. See Alder Terrace, lnc. v. United

States, 161 F .3d 1372, 1 377 (Fed. Cir. 1998); Entines v. United States, 39

Fed. C|.673,678 (1997), affld, 185 F.3d 881 (Fed. Cir.), cert. denied,526

U.S. 1117 (1999); see also John R. Sand & Gravel Co. v. United States,

457 F.3d 1345, 1362 (Fed. Cir. 2006) (Newman, J., dissenting); Revnolds

v. Armv & Air Force Exch. Serv. , 846 F .2d 746, 748 (Fed. Cir. 1988).

Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), aff'd, 465

F. App'x 952 (Fed. Qn.2012); see also Klamath Tribe Claims Comm. v. United States,

97 Fed. Cl. at209 (citingAlderTenace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed.

Cir. 1998)). Accrual of a claim is "'determined under an objective standard"' and plaintifi

does not have to possess actual knowledge of all the relevant facts in order for a cause

of action to accrue. FloorPro, Inc. v. United States, 680 F.3d at 1381 (quoting Fallini v.

United States,56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied,517 U.S. 1243 (1996)).

Although the accrual of a claim pursuant to 28 U.S.C. S 25Q1 may, in certain limited

scenarios, be suspended "until the claimant knew or should have known that the claim

existed," Holmes v. United States,657 F.3d 1303, 1317 (Fed. Cir.2011) (quoting Younq

v. United States,529 F.3d 1380, 1384 (Fed. Cir.2008)), a plaintiffs aileged "[i]gnorance

of rights which should be known is not enough" to suspend the accrual of a claim. Braude

v. United States.585 F.2d 1049 (Ct. Cl. 1978) (quoting JapaneseWarNotes Claimants

Ass'n v. United States. 373F.2d 356,358-59 (Ct. Cl. 1967) cert. denied,3Bg U.S.971

(1967)). Rather, the accrual suspension doctrine is "'strictly and narrowly applied,"' and

the accrual date of a cause of action will be suspended in onlyvery limited circumstances:

"[the plaintiffl must either show that defendant has concealed its acts with the result that

plaintiff was unaware of their existence or it must show that its injury was 'inherenfly

unknowable' at the accrual date." See Martinez v. United States. 333 F.3d at 1319

(quoting Welcker v. United States. 752 F.2d 1577, 1580 (Fed. Cir. 1985))' see atso

Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1492 (Fed.

cir. 1994); catawba Indian Tribe v. United States. 9BzF.2d 1s64, 1sz1-72 (Fed. cir.

1 993); Holmes v. United States, 657 F.3d at 1317; Welcker v. United States ,752 F .2d at

1580; Japanese War Notes Claimants Ass'n v. United States, 373 F.2d at 359.

The United states has waived sovereign immunity over patent infringement claims

against the federal government and its contractors, and provided the United states court

of Federal Claims with jurisdiction to hear such claims, under 28 U.S.C. S 1498(a).

Section 1498(a) states, in relevant part:

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 laMul right to use or manufacture the same, the

owner's remedy shall be by action against the United States in the United

States Court of Federal Claims for the recovery of his reasonable and entire

compensation for such use and manufacture. . .

15
For the purposes of this section, the use or manufacture of an invention

described in and covered by a patent of the United States by a contractor,

a subcontractor, or any person, firm, or corporation for the Government and

with the authorization or consent of the Government, shall be construed as

use or manufacture for the United States.

28 U.S.C. g 1498(a) (2012): see also Zoltek Corp. v. United States,672 F.3d 1309, 1312

(Fed. Cir. 2012)."A cause of action under28 U.S.C. g 1498 accrues'when the accuseo

[instrumentality] is first available for use."' Flovd v. United States, 125 Fed. Cl. 183, 1Bg

(2016) (alteration in original) (quoting Unitrac. LLC v. United States. 113 Fed. Cl. 156,

160 (2013), aff'd. 589 Fed. App'x. 990 (Fed. Cn.2015). "Each device, i.e., each individual

member of the universe of infringing devices . . . can be taken only once in its lifetime,

and if that taking occurs prior to the six-year period which immediately precedes the filing

of the lawsuit in the court of claims, then recovery as to that particular device is barred

forever by 28 U.S.C. s 2501." Starobin v. United States. 662 F.2d 747,749-SO (Ct. Cl.

1 981 ) (footnote omitted).

To be timely, therefore, any cause of action plaintiffs may have for patent

infringement must have been filed in this court within six years after the devices that

allegedly infringed on plaintiffs' patents, in this case the dual-handset telepnones

produced by cyracom and Language Line, were first made available for use. plaintiffs,

complaint was filed on November 19, 201s. Therefore, plaintiffs must be able to snow

that the allegedly infringing dual-handset telephones were made available no earlier than

November 19, 2009, six years before the filing of their complaint on November 19,201s.

Although plaintiffs fail to specify in their complaint when the devices they alleged infringed

on their patents were first made available for use, in their February 23,2013 letter to

President obama, plaintiffs state that AT&T, Language Line, and cyracom, "in direct and

legal partnership" with the Federal Government, have been engaging in "a willfully

ignored global and domestic infringement on intellectuat proplrtyl; "since 199s to

the present, 2013." lt 1995 is the operative date of availability, 1995 fllls far outside the

six year statute of limitations. Further, any alleged infringement that may have continued

to occur after 1995 "to the present" would not have served to alter or ioll the accrual of plaintiffs' cause of action. See also unitrac, LLC v. united states, 113 Fed. cl. at 160

("[O]ngoing infringement is irrelevant to this Court's jurisdiction in tfre context of the statute

of limitations." (citing Bissell y. united states, 41 Fed. App'x.414,416 (Fed.cir.2002))).

similarly, the documents plaintiffs attach to their complaint specifically related to

Cyraoom and Language Line both show that any potential cause of action plaintiffs might

have had would have accrued more than six years prior to the filing of their complaint.

Two of the documents plaintiffs attach to their complaint regarding cyiacom, the undated

press announcement and advertisement and the press release from septembe r 26,2007 .

both state that cyracom had made a "dual-handset phone" publicly available in 1995.

The 2007 press release states that, at that time, cyracom had also made available a

"dual-handset cordless phone." with regard^to Language Line, the only reference to a

to
potentially infringing product in plaintiffs' filings comes in the form of what appears to be

the screenshot from Language Line's website announcing a "new telephone with dual

handsets." The screenshot is dated October 26, 2009, over six years prior to the filing of

plaintiffs' complaint in this court.2 Therefore, the possible claims for patent infringement

that plaintiffs included in their complaint, even when interpreted liberally, are barred by

the statute of limitations under 28 usc S 2501.3 with respect to any patent infringement

claims alleged by plaintiffs, the government and CyraCom's motions to dismrss are

granted.

Turning to plaintiffs' trademark infringement claims, plaintiffs fail to maxe, or

provide any evidence that could be construed as making specific allegations that anyone

infringed on their "The You Talk rwo Phone" trademark other than the general statement

in pfaintiffs' February 23, 2013 letter to President obama, that AT&T, Language Line,

cyracom, and the federal government engaged in "a willfully ignored glouat ano

domestic infringement on intellectual propertyl". claims for irademark infringement

are governed by the Lanham Act, 15 U.s.c. 1051, et seq. (2012). setting aside rinether

plaintiffs' trademark allegations are sufficiently detailed to state a claim upon which relief

can be granted, which this court believes they are not, this court lacks jurisdiction ro near

any claims brought underthe Lanham Act, which jurisdiction lies exclusively in the United

states District courts. see 15 u.s.c. S 1121(a) (2012) ("The district and territorial courts

of the United States shall have original jurisdiction and the courts of appeal of the United

2 The documents plaintiffs attach to their complaint related to AT&T do not provide any

evidence that AT&T ever made available a dual-handset phone or any other device that

could potentially be construed as infringing on plaintiffs' alleged paients. At best, the

March 25, 1999 New York rimes article provided by plaintiffi could be interpreted as

showing that AT&T was involved in some sort of partnership with Language Line which, potentially, could have involved Language Line's dual-handset phone. Altnougfr the court

does not believe such an allegation is sufficient to state a claim upon which-relief could

be granted, the court need not even decide this issue because any possible claim arising

out of any alleged actions by AT&T related to a partnership with Linguage Line would be

barred by the statute of limitations for the same reasons as plaintiffsi clJims arising from

Language Line's actions are barred. Therefore, to the extent plaintiffs' complaint can oe

construed as alleging any claims arising out of the actions of AT&T, such claims are

d ismissed.

3 Plaintiffs have failed to allege or proffer any evidence showing that the accrual of their patent infringement claims should be suspended on the grounds that ,,defendant has

concealed its acts" or that "its injury was 'inherenfly unknowable' at the accrual date.,, see

Martinez v. United states. 333 F.3d at 1319 lquoiing welcker v. united States. 7s2 F-ie at 1580). such an argument also would fail in this case as there is evidence in the

submissions to the court that plaintiffs actually were aware of the existence of the alleged infringement over six years prior to filing their complaint. Plaintiffs indicate in their motion for assignment of pro bono counsel that, in "the year 200g," John sacchetti ,,fell 

over rn

shock" after seeing two "cYRAcoM-BLUE,.DItAL-HArvDsErfs/'while in the hospitat.

17
States (other than the United States Court of Appeals for the Federal Circuit) shall have

appellate jurisdiction, of all actions arising under [the Lanham Act.]"); see also Lockridqe

v. United States,218 Ct. Cl. 687, 689 (1978) ("We therefore conclude that we have no

jurisdiction over claims for trademark infringement."); Proxtronics Dosimetrv, LLC v.

United States, _F.3d. Cl _,2016W1 5757156, at"11 (Fed. Cl. Sept.30,2016) ('lt

is an unremarkable proposition that the Court of Federal Claims lacks jurisdiction over

Lanham Act claims."). Therefore, with respect to any possible claims for trademark

infringement that plaintiffs' complaint may be construed as alleging, the government and

CyraCom's motions to dismiss are granted.

CONCLUSION

Plaintiffs have failed to show that the requirements of RCFC 25(a) for the

substitution of a proper party have been met. Plaintiffs' September 12, 2016 and October

3,2016 "MOT|ON[S] TO RETATN THE ESTATE OF MARK JOSEPH SACCHETTT,'

therefore, are DENIED. Plaintiffs' claims for patent infringement are barred by the statute

of limitations, and this court lacks jurisdiction to hear plaintiffs' trademark infringement

claims. The motions to dismiss filed by the United States and the third-party defendant

CyraCom International, Inc., therefore, are GRANTED. Plaintiffs' complaint is

DISMISSED. The clerk shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED. zL /tz"/,-

MARIAN BLANK HORN

Judge

18