in Re Chicco USA, Inc v. U.S. Dist. Court for the South- ern 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NOTE: This order is nonprecedential.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 CHICCO USA, INC.,
Petitioner.

Miscellaneous Docket No. 977

On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Pennsylvania in
case no. 10-CV-740, Judge Lawrence F. Stengel.

ON PETITION

Before RADER, Chief Judge, LOURIE and O'MALLEY,
Circuit Judges.

RADER, Chief Judge.

## ORDER

Chicco USA, Inc. petitions for a writ of mandamus to
direct the United States District Court for the Eastern
District of Pennsylvania to vacate its order staying pro-
ceedings pending reexamination of certain claims of the
patent at issue. Sunshine Kids Juvenile Products, LLC
opposes. Chicco replies.

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On February 19, 2010, Chicco filed a complaint with
the United States District Court for the Eastern District
of Pennsylvania alleging that Sunshine infringed one of
its patents. During discovery and prior to any claim
construction hearing, Sunshine filed a motion to stay
district court proceedings pending reexamination of some
of the claims at issue. On October 7, 2010, before Chicco
responded to the motion, the district court granted Sun-
shine's motion, stating that no party would be prejudiced
by the stay. Subsequently, Chicco filed a motion to lift
the stay on October 29, 2010, and a renewed motion to lift
the stay on November 15, 2010. The district court has not
yet ruled on those motions.

Chicco petitions for a writ of mandamus to direct the
district court to vacate its October 7, 2010 stay order.
Chicco asserts that the district court clearly abused its
discretion by failing to allow Chicco to respond to Sun-
shine's stay motion and by failing to provide adequate
reasons for granting the stay. Chicco further asserts that
it will be prejudiced and irreparably harmed by the stay
because Chicco will continue to lose market share to
Sunshine.

The remedy of mandamus is available only in extraor-
dinary 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. Court for the South-
ern Dist. of Iowa, 490 U.S. 296, 309 (1989), and that the
right to issuance of the writ is "clear and indisputable,"
Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980). A court may deny mandamus relief "even though
on normal appeal, a court might find reversible error." In
re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985).

Chicco has not, in the papers submitted to this court,
met the exacting standard required for mandamus with

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regard to the district court's October 7, 2010 stay order.
We note, however, that the court's failure to provide any
explanation for granting the stay, despite the fact that not
all of the claims in suit are in reexamination, and long
delay in ruling on Chicco's motions to lift the stay might
tip the balance in favor of mandamus relief upon reappli-
cation in the future. We assume, however, that the court
will soon address the pending motions and then provide
an adequate explanation for its decision to keep a stay in
place in these circumstances.

Accordingly,
IT IS ORDERED THAT:

Chicco's petition for a writ of mandamus is denied
without prejudice to renewal, either following the district
court's disposition of the motions to lift the stay, or upon
further inaction in connection with those motions.

FOR THE COURT

JUL 12 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Anthony S. Volpe, Esq.
Jonathan Saul Franklin, Esq.
s20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JUL 12 2011

JAN HORBALY
CLERK