Miscellaneous Docket No. 853 in Re Star Scientific, Inc v. Daiflon, Inc., 449 U.S. 33, 35 1980 . Star Scientific has not met its burden in this…

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
MISCELLANEOUS DOCKET NO. 853
IN RE STAR SCIENTIFIC, INC.,
Petitioner.
ON PETITION FOR WRIT OF MANDAMUS
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MAYER, Circuit
Judge.
NEWMAN, Circuit Judge.
O R D E R
Star Scientific, Inc. petitions for a writ of mandamus to direct the United States
District Court for the District of Maryland to issue a decision regarding patent
unenforceability, which was tried in early 2005. R.J. Reynolds Tobacco Company (a
North Carolina corporation) and R.J. Reynolds Tobacco Company (a New Jersey
corporation) oppose. Star Scientific moves for leave to file a reply, with the reply
attached.
Star Scientific sued R.J. Reynolds for patent infringement in 2001. In January-
February of 2005, a bench trial was held on unenforceability. The district court judge
later indicated he would issue a decision on unenforceability concurrently with his ruling
on pending motions for summary judgment of invalidity. At various occasions, Star
Scientific requested information concerning the status of the pending matters. The
district court responded by suggesting that the determinations would be issued soon.
On January 19, 2007, the district court entered orders granting R.J. Reynolds'
motion for summary judgment of invalidity due to indefiniteness. In March of 2007, Star

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Scientific requested that the district court certify the invalidity determination for
immediate appeal because, due to the other pending issues, there was no final
judgment. The district court denied the request. In a recent order dated June 7, 2007,
the district court stated that its decision on unenforceability would be posted on the
court's website on June 29, 2007, or earlier, and that final judgment would be entered
promptly thereafter.
Prior to the June 7, 2007 order, Star Scientific petitioned this court for a writ of
mandamus to direct the district court to issue a decision on unenforceability within 30
days. 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 its right to
issuance of the writ is "clear and indisputable." Allied Chemical Corp. v. Daiflon, Inc., 449
U.S. 33, 35 (1980).
Star Scientific has not met its burden in this case. Star Scientific has not shown a
clear abuse of discretion or that the district court has "obstinately refuse[d]" to adjudicate
the matter. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666-67 (1978) ("Where a district
court obstinately refuses to adjudicate a matter properly before it, a court of appeals may
issue the writ to correct 'unauthorized action of the district court obstructing the appeal.'").
Additionally, we note that the district court recently stated a date certain upon which it
expects to resolve the matter.
Accordingly,
IT IS ORDERED THAT:
(1) Star Scientific's petition for a writ of mandamus is denied.
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Misc. 853 - 3 -
(2) Star Scientific's motion for leave to file a reply is granted.
FOR THE COURT
June 25, 2007 /s/ Pauline Newman
Date Pauline Newman
Circuit Judge
cc: Richard McMillan, Jr., Esq.
Richard A. Kaplan, Esq.
United States District Court, D. Md.
s8

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