NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

FLIR SYSTEMS, INC., 

Plaintiff-Appellee, 

v. 

THOMAS L. GAMBARO, 

DOING BUSINESS AS PATENT ENFORCEMENT COMPANY, 

Defendant-Appellant, 

and 

MOTIONLESS KEYBOARD COMPANY, 

Defendant. 

__________________________ 

2012-1100 

__________________________ 

Appeal from the United States District Court for the 

District of Oregon in case no. 10-CV-0231, Judge Anna J. 

Brown. 

__________________________ 

Decided: July 11, 2012 

__________________________ 

SUSAN D. MARMADUKE, Harrang Long Gary Rudnick 

P.C., of Portland, Oregon, for plaintiff-appellee. With her 

on the brief was JONA J. MAUKONEN. Of counsel on the 
FLIR SYSTEMS v. GAMBARO 2

brief was MICHAEL J. COLLINS, Bickel & Brewer, of Dallas, 

Texas. 

THOMAS L. GAMBARO, of Portland, Oregon, pro se. 

__________________________ 

Before RADER, Chief Judge, and O’MALLEY and REYNA, 

Circuit Judges. 

PER CURIAM. 

Pro se appellant, Thomas Gambaro, is the named inventor of U.S. Patent No. 5,322,322 (“the ‘322 Patent”) 

and U.S. Design Patent 405,071 (“the ‘071 Design Patent.”). In 1997, Mr. Gambaro founded Motionless Keyboard Company (“MKC”) and assigned the ‘322 Patent to 

MKC.1 Mr. Gambaro subsequently accused FLIR Systems, Inc. (“FLIR”) of infringing the ‘322 Patent. In 

response, FLIR sued MKC and Mr. Gambaro, seeking a 

declaratory judgment that its products did not infringe 

and that the patent is invalid and unenforceable. 

Throughout the litigation that ensued, Mr. Gambaro 

repeatedly violated court orders. As a sanction, the 

district court struck his pleadings and entered a default 

judgment of noninfringement in FLIR’s favor. Because 

imposition of that sanction was within the district court’s 

power and was not an abuse of discretion, we affirm.2 

I. 

Mr. Gambaro is the named inventor of the ‘322 Patent 

for “Ergonomic Thumb-Actuable Keyboard for HandGrippable Device,” which claims a hand-grippable device 

 1 The ‘322 Patent expired on January 12, 2010. 

 

2 The remaining issues on appeal provide no basis 

for relief. 
3 FLIR SYSTEMS v. GAMBARO

that frees the thumb to actuate keys in various ways.3 

After Mr. Gambaro founded MKC in 1997, he assigned 

the ‘322 Patent to it.4 

In 2004, MKC sued Microsoft and other defendants alleging infringement of the ‘322 Patent, but Chief Judge 

Ann Aiken of the United States District Court for the 

District of Oregon held that the patent was invalid and 

not infringed. Specifically, the district court construed 

the phrase “a concavity in said housing at said keyactuation positions and a thumb-associable cluster of keys 

forming a keyboard with said concavity” to mean: 

That the concavity must be formed by a depression in the housing of the device, and that all keys 

comprising the keyboard must be contained entirely within the concave area and sunk below the 

surface of the housing, so that the thumb movement occurs within the concave area. 

Microsoft I, 2005 WL 1113818 at *16, 19. On appeal, this 

court reversed the invalidity ruling, but affirmed the 

noninfringement ruling and claim construction (“Aiken 

Construction”). 

In 2009 and 2010, Mr. Gambaro mailed letters to 

FLIR, a thermal imaging camera producer. Relying on 

the claim construction the district court rejected in 2004, 

Mr. Gambaro alleged that certain FLIR products infringed the ‘322 Patent. Mr. Gambaro asserted that the 

Aiken Construction was erroneous and demanded that 

FLIR pay him monies for the alleged infringement. FLIR 

 3 Due to the complex procedural history of this case, 

only relevant portions of the procedural history are discussed herein. 

4 MKC was administratively dissolved by the State 

of Oregon in 2008. 
FLIR SYSTEMS v. GAMBARO 4

refused and sued Mr. Gambaro and MKC, seeking a 

declaratory judgment that, based on the Aiken Construction, its products did not infringe the claims of the ‘322 

Patent and that the patent is invalid and unenforceable. 

Mr. Gambaro filed counterclaims, including allegations of 

infringement, defamation, and malicious prosecution. 

FLIR moved to strike the Answer with respect to 

MKC because Mr. Gambaro filed it in violation of Oregon 

District Court Local Rule 83-9(b), which prohibits a 

corporation to appear or act except through an attorney 

absent a court order or as otherwise specified by law. The 

district court granted FLIR’s motion. Ultimately, MKC 

retained counsel, and the district court granted counsel’s 

motion for leave to withdraw. When MKC failed to answer FLIR’s amended complaint, the district court 

granted FLIR’s motion for entry of an Order of Default 

against MKC. 

FLIR served document requests and interrogatories, 

but Mr. Gambaro provided neither the requested documents nor substantive responses to interrogatories. 

Rather, Mr. Gambaro filed ten motions, primarily relating 

to disqualification and discovery issues. The district court 

denied the motions, except that it permitted Mr. Gambaro 

to file an amended answer. 

On June 23, 2010, the district court instructed Mr. 

Gambaro that the Aiken Construction had been fully 

litigated, but the district court would need to decide 

whether it was controlling on Mr. Gambaro since he was 

not a party to that litigation. FLIR moved for partial 

summary judgment seeking an order that the Aiken 

Construction was binding on Mr. Gambaro. 

During this time, Mr. Gambaro filed countless documents and motions with the district court. The district 

court repeatedly requested that Mr. Gambaro refrain 
5 FLIR SYSTEMS v. GAMBARO

from filing further motions. On March 25, 2011, the 

district court issued an order identifying how Mr. Gambaro had violated its previous orders and warned him to 

discontinue further violations. Specifically, the Order 

stated: 

The Court hereby issues its final warning to 

Gambaro. Any further violations of this 

Court’s orders, including its case-management 

orders, will be sanctioned to include the possibility of striking Gambaro’s Answer and permitting Plaintiff FLIR to proceed to a 

judgment in this matter without Gambaro’s 

participation. 

Mr. Gambaro responded four days later: 

The Defendant Pro Se does not consider the 

statement of the Court to be a ‘final warning’ but 

more accurately a threat of tyranny to the Constitutionally assured rights of a natural born citizen 

of the United States. The Defendant Pro Se is 

outraged that these measures were even considered to the point of including them in an order. 

DO NOT THREATEN ME AGAIN IN WRITING. 

I do not take kindly to threats in any form. 

Gambaro Ltr. to J. Brown (Mar. 29, 2011). Mr. Gambaro 

characterized the Order as “an act of Judicial Terrorism” 

and stated that he would never agree to the Aiken Construction because it was “FRAUD pure and simple.” Id. 

On April 18, 2011, the district court granted FLIR’s 

motion for partial summary judgment, ruling that Mr. 

Gambaro was bound by the Aiken Construction and could 

not further challenge it. Mr. Gambaro ignored that ruling 

and filed various documents, accusing Chief Judge Aiken 

of lacking the technical expertise to construe the patent 
FLIR SYSTEMS v. GAMBARO 6

correctly and failing to give adequate consideration to the 

evidence. 

In an order issued on June 3, 2011, the district court 

again warned Mr. Gambaro that his behavior could result 

in sanctions, stating in pertinent part: 

The Court has previously warned Gambaro that 

he will be sanctioned if he does not comply with 

the Court’s case-management orders. Accordingly, if Gambaro violates this order, the Court 

will sanction him and will consider striking all of 

his pleadings and precluding him from defending 

FLIR’s claims against him. 

In direct contravention of this order, Mr. Gambaro 

filed a video declaration and motion for reconsideration 

arguing that the Aiken Construction was erroneous. Two 

days later, he filed a progress report with a YouTube 

video that was purportedly evidence as to why the Aiken 

Construction was invalid. The district court issued two 

orders on August 1, 2011, warning Mr. Gambaro of the 

possible consequences of his violations and directing him 

to show cause why the district court should not impose a 

bond as security against future violations. Ten days later, 

Mr. Gambaro filed an unauthorized motion to bar the 

Aiken Rulings from the case, and the district court issued 

a supplemental order to show cause why the district court 

should not find Mr. Gambaro to be in violation of its prior 

orders. Mr. Gambaro’s response to the supplemental 

order states in pertinent part: 

The Court has ordered on numerous occasions 

that the parties may not file additional pleadings. 

In the view of the Defendant Pro Se Gambaro this 

is unconstitutional violating the Amendment I of 

the U.S. Constitution . . . and the attorneys may 

be bound to such an order but it is not mandatory 
7 FLIR SYSTEMS v. GAMBARO

in my view. I have a right to conduct my defense 

in the best manner possible. 

Gambaro Ltr. to J. Brown (Aug. 18, 2011). 

Because Mr. Gambaro refused to comply with the district court’s orders, FLIR moved for entry of default 

judgment against Mr. Gambaro, and the district court 

granted the motion. 

This appeal followed. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(1). 

II. 

This appeal appears to present the following issues: (i) 

whether the district court abused its discretion in sanctioning Mr. Gambaro by striking his pleadings and entering a default judgment of noninfringement; (ii) whether 

the district court incorrectly determined that FLIR had 

conferred sufficiently with Mr. Gambaro to satisfy the 

local conferral rule, or, in the alternative, abused its 

discretion in waiving the conferral requirement; (iii) 

whether the district court abused its discretion by deferring discovery and entry of a protective order and by 

denying Mr. Gambaro’s motion for sanctions against FLIR 

for alleged discovery violations; and (iv) whether the 

district court erred in granting FLIR’s motion for partial 

summary judgment declaring that Mr. Gambaro is bound 

by the Aiken Construction. Because we hold that the 

district court did not abuse its discretion in striking Mr. 

Gambaro’s pleadings and entering a default judgment of 

noninfringement, we do not reach the remaining issues 

raised on appeal. 

A. Standard of Review 

We review procedural issues not unique to patent law 

under the standards of the regional circuit -- here, the 
FLIR SYSTEMS v. GAMBARO 8

Ninth Circuit. See Dominant Semiconductors SDN, BHD 

v. OSRAM GmbH, 524 F.3d 1254, 1260 (Fed. Cir. 2008). 

In the Ninth Circuit, whether a district court has the 

power to impose a default sanction is reviewed de novo. 

See Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 

2011). Whether that sanction was properly imposed is 

reviewed for abuse of discretion. Id. Under this deferential standard, we will overturn a court’s decision to order 

default judgment as a sanction for misconduct “only if we 

have a definite and firm conviction that it was clearly 

outside the acceptable range of sanctions.” Malone v. 

United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 

1987). 

B. Analysis 

Mr. Gambaro primarily challenges the district court’s 

decision to strike his pleadings and enter a default judgment in FLIR’s favor as a sanction for his repeated violation of court orders. We hold that the district court 

possessed the power to impose that sanction and did not 

abuse its discretion in doing so. See Televideo Sys., Inc. v. 

Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987) (recognizing that district courts may enter default judgment to 

sanction abusive litigation practices and observing that 

such power is “necessary to enable the judiciary to function”). 

In the Ninth Circuit, a five-factor balancing test is 

applied to determine whether dismissal of a case is an 

appropriate sanction for failure to comply with a court 

order: (i) the public interest in expeditious resolution of 

the litigation; (ii) the court’s need to manage its docket; 

(iii) the risk of prejudice to the other party; (iv) the public 

policy favoring the disposition of cases on their merits; 

and (v) the availability of less drastic sanctions. See 

Malone, 833 F.2d at 130 (citation omitted). Taken as a 
9 FLIR SYSTEMS v. GAMBARO

whole, these factors weighed in favor of the default judgment. 

Mr. Gambaro repeatedly violated court orders, despite 

countless warnings by the district court that his behavior 

could result in sanctions that included the striking of his 

pleadings and the entrance of a default judgment. The 

district court gave Mr. Gambaro multiple opportunities to 

show cause why such sanctions should not be imposed. 

We find no error in the district court’s conclusion that Mr. 

Gambaro was attempting to protract the litigation to force 

FLIR to settle the case. It is beyond dispute that Mr. 

Gambaro’s disobedience of court orders made the district 

court’s case management more difficult and wasted judicial time and resources. We agree with the district court’s 

conclusion that FLIR was prejudiced because it had to 

respond to Mr. Gambaro’s unauthorized motions, incurring unnecessary litigation expenses and delaying resolution of the matter. The district court observed that it had 

no reason to conclude that Mr. Gambaro would stop filing 

frivolous motions or willfully violating court orders. It 

correctly noted that the public policy favoring disposition 

of the merits weighed against entering a default judgment. However, when considered in light of the other 

factors, this factor alone does not preclude imposition of a 

default judgment. 

We also find no error in the district court’s conclusion 

that less drastic measures would be insufficient given 

provided the district court’s repeated attempts to convince 

Mr. Gambaro to comply with court orders and rules. The 

district court had employed less drastic measures, such as 

issuing orders to show cause and other warnings, but 

these measures proved ineffective. The district court 

warned Mr. Gambaro of the possibility of the sanction of a 

default judgment before imposing it. It implemented 

alternative sanctions before ordering default, and it 
FLIR SYSTEMS v. GAMBARO 10

explained why less drastic sanctions were inappropriate 

in light of Mr. Gambaro’s conduct during the litigation. 

Therefore, we hold that the district court did not abuse its 

discretion.5 For the foregoing reasons, the judgment of 

the district court is hereby 

AFFIRMED 

COSTS

Appellant shall bear the costs. 

 5 We have considered Mr. Gambaro’s other arguments made on appeal and in light of our holding above, 

we find that they provide no basis for relief.