in Re Cisco Systems, Inc v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 309 1989

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE CISCO SYSTEMS, INC.,
Petitioner.

Miscellaneous Docket No. 975

On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas in case no.
07-CV-341, Magistrate Judge Charles Everingham, IV.

## ON PETITION

Before RADER, Chief Judge, NEWMAN and BRYSON, Circuit
Judges.

BRYSON, Circuit Judge.

## ORDER

Cisco Systems, Inc. petitions for a writ of mandamus
to direct the United States District Court for the Eastern
District of Texas to vacate its order granting Commil
USA, LLC a new trial on issues of indirect infringement
and damages. Alternatively, Cisco moves to direct the
trial court not to instruct the new jury that Cisco has

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been found to infringe Commil's patent or otherwise
reference the prior trial. Cisco also moves to stay proceed-
ings in the trial court pending our disposition of its peti-
tion.

The jury determined that Commil's patent was valid,
that Cisco directly infringed the patent, and that Cisco
did not induce others to infringe. The jury awarded
damages based on those determinations. After the trial,
the district court granted Commil a partial new trial on
the issues of inducement and damages because of state-
ments made by Cisco's counsel in the presence of the jury.

Cisco's petition urges that we grant the requested re-
lief on the grounds that a new trial was not warranted
and a partial trial of inducement is improper without
retrying the issues of direct infringement and patent
validity. The writ of mandamus is available in extraordi-
nary situations to correct a clear abuse of discretion or
usurpation of judicial power. In re Calmar, Inc., 854 F.2d
461, 464 (Fed. Cir. 1998). A party seeking a writ bears
the burden of proving that it has no other means of ob-
taining the relief desired, Mallard v. United States Dist.
Court for Southern Dist. of Iowa, 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).

In the papers submitted, Cisco has not shown why it
cannot raise any challenge to the district court's determi-
nations on appeal from a final judgment. Although Cisco
argues that the trial court's order "will impose on Cisco
the monumental time and expense of an unnecessary
retrial," that is generally insufficient to warrant manda-
mus relief. See Bankers Life & Cas. Co. v. Holland, 346
U.S. 379, 383 (1953) ("[I]t is established that the extraor-
dinary writs cannot be used as substitutes for appeals . . .

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even though hardship may result from delay and perhaps
unnecessary trial"). Because Cisco has failed to meet its
burden of establishing the extraordinary circumstances
necessary to grant mandamus relief, we deny the petition.

Accordingly,

IT IS ORDERED THAT:

(1) The petition for a writ of mandamus is denied.

(2) The motion for a stay is moot.

FOR THE COURT

MAR 0 4 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Henry B. Gutman, Esq.
Richard A. Sayles, Esq.
Clerk, United States District Court For The Eastern
District Of Texas, Marshall Division
$19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAR 04 2011

JAN HORBALY
CLERK