Federal Circuit disposition — 2010-m923-1-6-10-1-pdf

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# United States Court of Appeals for the Federal Circuit

Miscellaneous Docket No. 923
IN RE NORGREN INC.,
Petitioner.

On Petition for Writ of Mandamus to the United States
International Trade Commission in Investigation No. 337-TA-587.

ON PETITION FOR WRIT OF MANDAMUS

Before GAJARSA, SCHALL, and MOORE, Circuit Judges.

GAJARSA, Circuit Judge.

## ORDER

Norgren Inc. petitions for a writ of mandamus directing the United States
International Trade Commission to vacate its order scheduling a hearing on April 21,
2010.

The Commission instituted an investigation based on a complaint filed by
Norgren that named, inter alia, SMC Corporation and SMC Corporation of America
(SMC) as respondents. The administrative law judge (ALJ) concluded that SMC did not
infringe Norgren's patent and that the asserted claims of Norgren's patent would not
have been obvious. The Commission determined not to review the ALJ's determination,
making the ALJ's determination the final determination of the Commission, and Norgren
appealed. This court determined that the ALJ's claim construction was erroneous and
reversed the noninfringement determination, vacated the determination that the

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asserted claims of the patent would not have been obvious, and remanded. Norgren
Inc. v. Int'l Trade Comm'n, 336 Fed. Appx. 991 (Fed. Cir. 2009).

On remand, Norgren states that SMC requested a limited reopening of the
evidentiary record, the Commission staff requested that the record be reopened with
additional discovery, and Norgren asked that the ALJ rule on the existing evidentiary
record. Norgren states that the ALJ chose to schedule an evidentiary hearing and
requests that the court grant a mandamus petition to prevent the hearing from taking
place. Norgren cites Fed. R. Civ. P. 59 and 60 and certain Commission rules and
argues that "absent certain prejudicial circumstances, a party has a single opportunity to
present evidence to support its case."

The remedy of mandamus is available only in extraordinary situations to correct a
clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461,
464 (Fed. Cir. 1988). A party seeking a writ bears the burden of proving that it has no
other means of attaining the relief desired, Mallard v. U.S. Dist. Ct. for S. Dist. of lowa,
490 U.S. 296, 309 (1989), and that the right to issuance of the writ is "clear and
indisputable," Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). "That a
petitioner may suffer hardship, inconvenience, or an unusually complex trial does not
provide a basis for a court to grant mandamus." In re Roche Molecular Sys., Inc., 516
F.3d 1003, 1004 (Fed. Cir. 2008).

The court determines that Norgren has not met its burden to obtain a writ of
mandamus.

Accordingly,
IT IS ORDERED THAT:

The petition is denied.

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## FOR THE COURT

JAN 0 6 2010

Date

cc:

Carl F. Manthei, Esq.

Arthur I. Neustadt, Esq.

Mark B. Rees, Esq.

Secretary, USITC

ALJ, USITC

s17

/s/ Jan Horbaly
Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

JAN 06 2010
JAN HORBALY
CLERK

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