N OTE : This disposition is nonprecedential.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

______________________
M ORRIS S. G LOVER , Bedford Heights, OH, pro se.

K URT J OHN N IEDERLUECKE , Fredrikson & Byron, PA, Minneapolis, MN, for defendants

- appellees. Also represented by C ARA S

. D ONELS , Des Moines, IA.

______________________ Case: 21-2126 Document: 26 Page: 1 Filed: 10/05/2022GLOVER v. COHEN 2

Before D YK , T ARANTO , and S TARK , Circuit Judges

. P ER C URIAM

. Morris S. Glover (“Glover”) appeal s 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

- 0 2227 (N .D. Ohio)

. For the reasons below, we affirm.

I

Glover owns expired utility and design patent s, U.S. Patent No s . 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 ® d ilator

, 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 declara tion ass erting that he was the primary inventor of the Breathe Right® d ilator 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 maint a ined that Glover had nothing to do with the invention of the Breathe Right® device. S imilarly, c ur rent

- 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 infr ingement

. Case: 21-2126 Document: 26 Page: 2 Filed: 10/05/2022GLOVER 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 h e 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 improperl y conveyed his idea to Defendant Johnson. He also attacks various aspects of the evidence in the prior litigation.
The caption of Glover’s C omplaint 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 a nd 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 ). Case: 21-2126 Document: 26 Page: 3 Filed: 10/05/2022GLOVER v. COHEN 4

II

W e apply the law of the applicable regional circuit, here the T hird 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)

, s ee Endo Pharms. Inc. v. Teva Pharms. USA, Inc. , 919 F.3d 1347, 1352 (Fed. Cir. 2019 ); application s of issue preclusion

, se e Voter Verified, Inc. v. Election Sys. & Software LLC

, 887 F .3d 1376, 1382 (Fed. Cir. 2018) ; 2 and statute of limitations rulings,

s ee 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)

. W e 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 fac ts to state a claim to relief that is plausible on its face.” Id. ( internal quotation marks omitted ). Here, Glover failed to state a ny 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 concl ude that Federal Circuit law applies to issue preclusion, the result would be the

same. Case: 21-2126 Document: 26 Page: 4 Filed: 10/05/2022GLOVER v. COHEN 5

Under this doctrine , a party cannot reliti gate 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 inf ringement by the Breathe Right® d ilator

– in the No rthern 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) (no ting abuse of discretion review for non

mutual 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 issu e [was] actually litigated; (3) it [was] determined bya final and valid judgment; and (4) the determination [was] es sential 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 17 4

- 7 5 ( internal quotation marks omitted)

. Here, all of these prerequisites a re met. First, the

same issue

– whe ther the Breathe Right ® d ilator infring e s 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 determin ed by a final and val id judgment, which

was entered by the District Court and affirmed by us

. Fourth, the issue was necessary to the District Court’s deci sion; 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

. Case: 21-2126 Document: 26 Page: 5 Filed: 10/05/2022GLOVER v. COHEN 6

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 a ny claim upon which relief could be granted concerning a conspiracy to invalidate his patents i n the prior litigation or that the grant of summary judgment denied him du e process and violated his Seventh Amendment right to a jury trial

. Relatedly, h e failed tostate 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. A s an i nitial matter, we note that, contrary to Glover’s beliefs, the District Court never invalidated his pate nts in that litigation. Glover’s patents expired naturally, as do all patents granted by the federal government.

A valid and proper grant of summary ju dgment

, preceded by the litigant s having had a full and fair opportunity to litig ate, does not violate the Sev enth Amend ment. S ee , e.g. , In re TMI Litig.

, 193 F.3d 613, 725 (3d Cir. 1999)

. Nor do such circumstances amount to a violation of due

pro cess. S ee 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 li mitation s

. 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 four

year statute of limitations in 28 U.S.C. § 1658 does not Case: 21-2126 Document: 26 Page: 6 Filed: 10/05/2022GLOVER v. COHEN 7

(2007); Kach v. Hose , 589 F.3d 626, 634 (3d Cir. 2009) (two years under Pennsylvan ia 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 s tate 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 limitation s

. 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)

. E ach of these cause s of action (i.e., claims under §§ 1983, 1985, and 19 86) 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 199 6 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 wou ld 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 Case: 21-2126 Document: 26 Page: 7 Filed: 10/05/2022GLOVER v. COHEN 8

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 amendme nt 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 beli eve his intellectual property was stolen. But Glover already litigated his patent infringem ent claim , and the time for litigating his remaining claims , to the extent they are actionable, has long since passed

. Therefore, w e affirm the judgment of the District Court

. AFFIRMED

C OSTS

No costs.

U.S. 16 3 (1993), any such claim also fail s . Only the federal government can prosecute a violation of that statute. See,
e.g. , Watson v. Wash ington Twp. of Gloucester Cnty. Pub. Sch. Dist. , 413 F. App’ x 466, 468 (3d Cir. 2011)

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