United States District Court, Western District of Washington, Seattle
ORDER GRANTING MOTION TO DISMISS
JAMES L. ROBART United States District Judge
Before the court is Defendants Michelle K. Lee and the United States Patent and Trademark Office’s (collectively “USPTO”) Federal Rule of Civil Procedure 12(b)(1) motion to dismiss Plaintiff Big Baboon, Inc.’s (“BBI”) complaint for lack of subject matter jurisdiction. (Mot. (Dkt. # 15).) The court has considered the motion, all submissions filed in support of or opposition thereto, the balance of the record, and the applicable law. Being fully advised,  the court GRANTS USP TO s motion and DISMISSES BBI’s complaint without prejudice.
This case arises out of USPTO’s ex parte reexamination of two patents owned by BBI. (Compl. (Dkt. # 1) ¶ 5.) BBI alleges that it is the assignee and owner of United States Patent No. 6, 115, 690 (“the ’690 Patent”) and United States Patent No. 6, 343, 275 (“the ’275 Patent”). (Id. ¶¶ 5, 16.) Specifically, BBI seeks review of USPTO’s Director’s denial of two 37 C.F.R. § 1.181 petitions that BBI filed during the pendency of the reexamination proceedings of the ’690 and the ’275 Patents. (See Id. ¶¶ 5, 54, 63, 67.)
A. Ex Parte Reexamintion
The purpose of the reexamination process is to increase the reliability of USPTO action in issuing a patent by reexamination of patents thought doubtful. In re Etter, 756 F.2d 852, 857 (Fed. Cir. 1985). The statutory provision authorizes “[a]ny person at any time” to file a request with USPTO to reexamine a patent that USPTO has already issued “on the basis of any prior art cited.” 35 U.S.C. § 302. If USPTO determines that there is a “substantial new question of patentability, ” 35 U.S.C. § 303(a), “the determination will include an order for reexamination of the patent for resolution of the question, ” 35 U.S.C. § 304.
B. Petitions under 37 C.F.R. §§ 1.181-1.183
The USPTO has also established a separate process for filing petitions to address or challenge certain matters not directly involving the merits of an examiner’s rejection of a patent claim. See 37 C.F.R. §§ 1.181-1.183. A petition under § 1.181 may be filed to challenge an examiner’s action that is not appealable to the Board or to “invoke the supervisory authority of the Director in appropriate circumstances.” 37 C.F.R. § 1.181(a).
C. Requests for Reexamination of the ’690 and ’275 Patents
On April 28, 2010, a third party filed a request for an ex parte reexamination of the ’275 Patent, which included declarations by Stephan Nuber (“Nuber Declaration”) and Chris Burton (“Burton Declaration”), with attached prior art references. (Compl. ¶ 19.) On May 10, 2010, an entity, which is not a party to this lawsuit, filed a request for ex parte reexamination of the ’690 Patent, which also included the same two identical declarations. (Id. ¶ 20.) Generally, these declarations describe the circumstances of when and how the appended prior art references were published and became available to the public. (Id. Exs. 1, 2.) Soon thereafter, USPTO instituted reexamination proceedings regarding both the ’690 Patent and the ’275 Patent. (Id. ¶¶ 21, 22.) BBI objected to USPTO’s reliance on the Nuber and Burton Declarations and their attachments during the course of the ex parte reexaminations of both the ’275 and the ’690 Patents. (Id. ¶¶ 44, 56.)
E. BBI’s § 1.181 Petition During the ’275 Patent
On December 12, 2013, during the pendency of the reexamination proceedings concerning the ’275 Patent, BBI filed a petition under 37 C.F.R. § 1.181 to the Director of USPTO. (Compl. ¶ 49, Ex. 3.) BBI reiterated its objections to the Examiner’s reliance on the Nuber and Burton Declarations and their attachments and sought an order precluding the Examiner from relying on the declaration and their attachments as prior art. (Id. ¶ 51, Ex. 3.) BBI argued that the Nuber Declaration was inadmissible under the Federal Rules of Evidence and unreliable. (Id. Ex. 3.) The Director denied BBI’s § 1.181 petition on March 26, 2014, and found that the Examiner had ...