In re: 3RD EYE SURVEILLANCE, LLC, DISCOVERY PATENTS, LLC v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 1989

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: 3RD EYE SURVEILLANCE, LLC,
DISCOVERY PATENTS, LLC,
Petitioners
______________________
2019-119
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On Petition for Writ of Mandamus to the United States
Court of Federal Claims in No. 1:15-cv-00501-CFL, Senior
Judge Charles F. Lettow.
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ON PETITION
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Before L OURIE, D YK, and WALLACH , Circuit Judges.
D YK, Circuit Judge.
O R D E R
3 rd Eye Surveillance, LLC et al. (collectively, “3 rd Eye
Surveillance”) petition for a writ of mandamus directing
the United States Court of Federal Claims to compel dis-
covery of Vidsys, Inc.’s source code.
3 rd Eye Surveillance sued the United States in the
Claims Court, alleging that its patents are being infringed
by security systems in use at secured locations owned, op-
erated, or managed by or for the United States. Several
suppliers of various hardware, software, or information
Case: 19-119 Document: 4 Page: 1 Filed: 04/30/2019

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IN RE: 3RD EYE SURVEILLANCE, LLC 2
technology services, including Vidsys, were granted leave
to intervene.
3 rd Eye Surveillance sought to compel the production of
all source code operating the government’s security sys-
tems. In support of its request, 3rd Eye Surveillance sub-
mitted the declaration of an expert witness, Mr. Joseph
McAlexander, who stated that he “can best form verifiable
opinions concerning infringement of the claims of the pa-
tent by being permitted the opportunity to inspect the com-
puter systems and associated software, source code and
firmware used by each of the” accused systems.
The Claims Court denied the motion. It found that the
declaration from 3rd Eye Surveillance’s expert witness was
insufficient because it did not explain how access to the
source code was actually needed to form an infringement
opinion. The Claims Court further noted that the patents
themselves do not address source code in express terms
and that 3 rd Eye Surveillance had other means available to
determine the functionality of the claim terms before de-
manding source code. The Claims Court therefore con-
cluded that 3 rd Eye Surveillance had failed to show a
particularized and good faith basis for the source code dis-
covery sought.
“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 MSTG, Inc., 675 F.3d
1337, 1341 (Fed. Cir. 2012). A party seeking a writ must
demonstrate that it has no “adequate alternative means”
to obtain the desired relief, Mallard v. U.S. Dist. Court for
the S. Dist. of Iowa, 490 U.S. 296, 309 (1989), and that the
right to issuance of the writ is “clear and indisputable,”
Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978) (in-
ternal quotation marks omitted). 3 rd Eye Surveillance has
failed to satisfy that demanding burden here.
Discovery of source code is not permitted without first
establishing the relevance and need for such information.
Case: 19-119 Document: 4 Page: 2 Filed: 04/30/2019

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IN RE: 3RD EYE SURVEILLANCE, LLC 3
See Drone Techs., Inc. v. Parrot S.A., 838 F.3d 1283, 1300
(Fed Cir. 2016). At bottom, 3 rd Eye Surveillance’s petition
primarily seeks to attack the Claims Court’s case-specific
findings regarding the sufficiency of the materials pre-
sented to establish such need and relevance, which this
court is not prepared on mandamus to disturb.
Moreover, 3 rd Eye Surveillance has failed to demon-
strate that they satisfy the no alternative means require-
ment. The Claims Court itself here suggested that after
witness depositions and document production, 3 rd Eye Sur-
veillance may be able to “hone [its] allegations to specific
security systems or locations” and then could perhaps show
“a particularized and good faith basis for the source code
discovery [it] seek[s].” Additionally, 3 rd Eye Surveillance
can always raise a challenge that the Claims Court abused
its discretion in denying discovery of source code in an ap-
peal after entry of final judgment in the case.
Accordingly,
I T I S O RDERED T HAT :
The petition for writ of mandamus is denied.
F OR THE COURT
April 30, 2019 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s25
Case: 19-119 Document: 4 Page: 3 Filed: 04/30/2019

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