NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MORRIS S. GLOVER,

Plaintiff-Appellant

v.

DANIEL E. COHEN, BRUCE C. JOHNSON, 

CREATIVE INTEGRATION & DESIGN, INC.,

Defendants-Appellees

SUZANNE KAMEESE, LOWELL FRENCH,

Defendants

______________________

2021-2126

______________________

Appeal from the United States District Court for the 

Western District of Pennsylvania in No. 2:19-cv-00734-

WSH, Judge W. Scott Hardy.

______________________

Decided: October 5, 2022

______________________

MORRIS S. GLOVER, Bedford Heights, OH, pro se. 

 KURT JOHN NIEDERLUECKE, Fredrikson & Byron, PA, 

Minneapolis, MN, for defendants-appellees. Also represented by CARA S. DONELS, Des Moines, IA. 

 ______________________

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2 GLOVER v. COHEN

Before DYK, TARANTO, and STARK, Circuit Judges.

PER CURIAM.

Morris S. Glover (“Glover”) appeals the final judgment 

of the United States District Court for the Western District 

of Pennsylvania following dismissal with prejudice of his 

complaint, which largely concerns the prior litigation 

Glover v. CNS, Inc., No. 95-02227 (N.D. Ohio). For the reasons below, we affirm.

I

Glover owns expired utility and design patents, U.S. 

Patent Nos. 5,466,456 (issued November 14, 1995) and 

D351,924 (issued October 25, 1994), which concern a facial 

cleanser and an ornamental design for a facial cleanser, respectively. In the current litigation, Glover appears to 

maintain his assertion, first made over twenty-five years 

ago, that his patents were infringed by a product called the 

Breathe Right® dilator, manufactured and sold by CNS, 

Inc. (“CNS”).

In 1995, Glover sued CNS in the United States District 

Court for the Northern District of Ohio for infringing his 

patents. During that litigation, one of the Defendants in 

the current case, Bruce C. Johnson (“Johnson”), submitted 

a declaration asserting that he was the primary inventor of 

the Breathe Right® dilator and that he had transferred his 

rights in the device to Creative Integration & Design, Inc. 

(“CID”), which in turn granted CNS an exclusive license 

concerning the device. Johnson maintained that Glover 

had nothing to do with the invention of the Breathe Right® 

device. Similarly, current-Defendant Daniel E. Cohen 

(“Cohen”), then associated with CNS, submitted a declaration that Glover had nothing to do with the Breathe Right® 

device. The District Court eventually granted CNS’s motion for summary judgment, finding no infringement. 

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GLOVER v. COHEN 3

Glover appealed, and we affirmed. See Glover v. CNS, Inc., 

111 F.3d 144 (1997) (per curiam).

In the instant case, brought in 2019, Glover appears to 

again assert that the Breathe Right® dilator infringes his 

patents. He alleges that in 1987 he submitted the idea for 

his invention to American Idea Management Corporation 

(“AIM”), an entity associated with Defendants Suzanne 

Kameese and Lowell French. Glover contends that AIM 

improperly conveyed his idea to Defendant CID, which in 

turn improperly conveyed his idea to Defendant Johnson. 

He also attacks various aspects of the evidence in the prior 

litigation.

The caption of Glover’s Complaint indicates his claims 

are for “[p]atent infringement, conspiracy for a summary 

judgment making Plaintiff’s patents invalid,” “[d]enial of 

due process of law, VII Amendment to the Constitution 

which renders a void judgment,” and “42 U.S.C. §§ 1983, 

1985, 1986.” Complaint at 1, Glover v. Cohen, No. 19-00734

(W.D. Pa. June 26, 2019). In his prayer for relief, Glover 

sought to void the summary judgment ruling from the prior 

litigation, reinstate his patents, and be provided an opportunity to demonstrate infringement in a jury trial.

Kameese, CID and Johnson, and Cohen filed three separate motions to dismiss, each of which the District Court

granted.1 Glover timely appealed. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(1).

1 Glover thereafter filed a “Motion: Objection to the 

Court’s ‘Memorandum Opinion,’” which the District Court 

construed as an untimely motion for reconsideration, but 

nonetheless considered and denied. See Memorandum Order denying Plaintiff’s “Motion: Objection to the Court’s 

Memorandum Opinion,” Glover v. Cohen, No. 19-00734 

(W.D. Pa. Mar. 25, 2021).

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4 GLOVER v. COHEN

II

We apply the law of the applicable regional circuit, here 

the Third Circuit, on issues of procedural law that do not

implicate patent law, while we apply the law of our own 

circuit to issues of patent law. See Landmark Screens, LLC 

v. Morgan, Lewis, & Bockius, LLP, 676 F.3d 1354, 1361 

(Fed. Cir. 2012). Thus, we apply regional circuit law to dismissals under Fed. R. Civ. P. 12(b)(6), see Endo Pharms. 

Inc. v. Teva Pharms. USA, Inc., 919 F.3d 1347, 1352 (Fed. 

Cir. 2019); applications of issue preclusion, see Voter Verified, Inc. v. Election Sys. & Software LLC, 887 F.3d 1376, 

1382 (Fed. Cir. 2018);2 and statute of limitations rulings, 

see id.

Like the Third Circuit, we review a pro se litigant’s submissions liberally. See Higgs v. Atty. Gen. of the U.S., 655 

F.3d 333, 339 (3d Cir. 2011); In re Steed, 802 F.3d 1311, 

1317 (Fed. Cir. 2015).

We apply de novo review to a Rule 12(b)(6) dismissal. 

See Endo Pharms., 919 F.3d at 1352 (applying Third Circuit law). “To survive a motion to dismiss for failure to 

state a claim, a complaint must allege enough facts to state 

a claim to relief that is plausible on its face.” Id. (internal 

quotation marks omitted). Here, Glover failed to state any

claim upon which relief could be granted.

A

Concerning patent infringement, Glover failed to state

a claim upon which relief can be granted because his suit 

is barred by issue preclusion. Issue preclusion can be a 

proper basis for a Rule 12(b)(6) dismissal. See Leyse v. 

Bank of Am. Nat’l Ass’n, 804 F.3d 316, 320 (3d Cir. 2015). 

2 Even if we were to conclude that Federal Circuit 

law applies to issue preclusion, the result would be the 

same.

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GLOVER v. COHEN 5

Under this doctrine, a party cannot relitigate an issue that 

has already been litigated. See Peloro v. United States, 488 

F.3d 163, 175 (3d Cir. 2007). That is the situation here. 

Glover litigated the same issue – patent infringement by 

the Breathe Right® dilator – in the Northern District of 

Ohio action and cannot relitigate that issue now.

The Third Circuit generally applies plenary review to

determinations of issue preclusion. See Jean Alexander 

Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 247-49 

(3d Cir. 2006) (noting abuse of discretion review for nonmutual offensive collateral estoppel). In the Third Circuit, 

the prerequisites for applying issue preclusion are

(1) the issue sought to be precluded [is] the same as 

that involved in the prior action; (2) that issue 

[was] actually litigated; (3) it [was] determined by 

a final and valid judgment; and (4) the determination [was] essential to the prior judgment. . . . For 

defensive collateral estoppel – a form of non-mutual issue preclusion – to apply, the party to be precluded must have had a “full and fair” opportunity 

to litigate the issue in the first action.

Peloro, 488 F.3d at 174-75 (internal quotation marks omitted).

Here, all of these prerequisites are met. First, the 

same issue – whether the Breathe Right® dilator infringes

Glover’s patents – was at issue in the prior action. Second, 

the issue was actually litigated; the District Court expressly determined there was no infringement. Third, the 

issue was determined by a final and valid judgment, which 

was entered by the District Court and affirmed by us. 

Fourth, the issue was necessary to the District Court’s decision; the Court grant of summary judgment was premised 

on the finding of no infringement. Finally, Glover had a 

full and fair opportunity to litigate and, in fact, did litigate 

the issue of infringement in both the District Court and 

this Court.

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6 GLOVER v. COHEN

Because Glover is barred by the doctrine of issue preclusion from proceeding with his claim of patent infringement, we need not address any other potential deficiencies 

in this claim.

B

Glover also failed to state any claim upon which relief 

could be granted concerning a conspiracy to invalidate his 

patents in the prior litigation or that the grant of summary 

judgment denied him due process and violated his Seventh 

Amendment right to a jury trial. Relatedly, he failed to 

state any claim upon which relief could be granted with respect to 42 U.S.C. §§ 1983, 1985, and 1986.

All of these claims arise from the prior litigation. As 

an initial matter, we note that, contrary to Glover’s beliefs, 

the District Court never invalidated his patents in that litigation. Glover’s patents expired naturally, as do all patents granted by the federal government.

A valid and proper grant of summary judgment, preceded by the litigants having had a full and fair opportunity to litigate, does not violate the Seventh Amendment. 

See, e.g., In re TMI Litig., 193 F.3d 613, 725 (3d Cir. 1999). 

Nor do such circumstances amount to a violation of due 

process. See Kehoe v. Int’l Ass’n of Theatrical Stage Emps. 

Loc. 21, 682 F. App’x 161, 163 (3d Cir. 2017).

Finally, any possible §§ 1983, 1985, or 1986 claim is 

barred by the applicable statute of limitations. The statute 

of limitations for a § 1983 claim is the same as the pertinent state’s statute of limitations for personal injury torts, 

which is two years in both Ohio (where Glover brought his 

earlier action) and Pennsylvania (where he brought the instant action).3 See Wallace v. Kato, 549 U.S. 384, 387 

3 Although § 1983 was amended in 1996, the fouryear statute of limitations in 28 U.S.C. § 1658 does not 

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GLOVER v. COHEN 7

(2007); Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (two 

years under Pennsylvania law); Browning v. Pendleton, 

869 F.2d 989, 992 (6th Cir. 1989) (en banc) (two years under Ohio law).

The same two-year statute of limitations applies to 

Glover’s § 1985 claim. See Dique v. N.J. State Police, 603 

F.3d 181, 189 (3d Cir. 2010) (applying state law statute of 

limitations to § 1985); Bougher v. Univ. of Pittsburgh, 882 

F.2d 74, 79 (3d Cir. 1989) (two years under Pennsylvania 

law); Dotson v. Lane, 360 F. App’x 617, 619 n.2 (6th Cir. 

2010) (two years under Ohio law).

Section 1986, by its very terms, carries a one-year statute of limitations. See 42 U.S.C. § 1986; Fitzgerald v. Larson, 741 F.2d 32, 34 n.2 (3d Cir. 1984), vacated on other 

grounds, 471 U.S. 1051 (1985).

Each of these causes of action (i.e., claims under 

§§ 1983, 1985, and 1986) accrued “when the plaintiff knew 

or should have known of the injury upon which [his] action 

is based.” See, e.g., Kach, 589 F.3d at 634 (concerning accrual under § 1983). Glover’s allegations concern events 

that happened at least twenty years ago. His claims were 

brought well after the one- and two-year statutes of limitations had expired.4 Further, Glover presents no argument 

apply, because Glover’s claim was not made possible by the 

1996 amendment. See Jones v. R.R. Donnelley & Sons Co., 

541 U.S. 369, 382-83 (2004); Federal Courts Improvement 

Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 

3853 (1996). Even if the four-year statute of limitations 

applied, Glover’s claim would still be barred.

4 To the extent Glover relies on 18 U.S.C. § 241,

which is a criminal statute without any private right of action, see United States v. City of Phila., 644 F.2d 187 (3d 

Cir. 1980), overruled on other grounds by Leatherman v. 

Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 

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8 GLOVER v. COHEN

or evidence to support any equitable tolling (assuming such 

tolling is even possible). Thus, his claims are barred.

C

It appears that Glover did not request leave to amend 

his Complaint before the District Court and does not do so 

on appeal either. Regardless, in light of our analysis, any

amendment would be futile. See generally Alston v. Parker, 

363 F.3d 229, 235-36 (3d Cir. 2004) (requiring opportunity 

to amend unless futile), abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III

We realize that Glover continues to believe his intellectual property was stolen. But Glover already litigated his 

patent infringement claim, and the time for litigating his 

remaining claims, to the extent they are actionable, has 

long since passed. Therefore, we affirm the judgment of 

the District Court.

AFFIRMED

COSTS

No costs.

U.S. 163 (1993), any such claim also fails. Only the federal 

government can prosecute a violation of that statute. See, 

e.g., Watson v. Washington Twp. of Gloucester Cnty. Pub. 

Sch. Dist., 413 F. App’x 466, 468 (3d Cir. 2011). 

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