NOTE: This order is nonprecedential
Un1'ted States Court of,AppeaIs
~ for the FederaI Circuit
IN RE CISCO SYSTEMS, INC.,
Petitioner. -
Miscellaneous Docket No. 975 =
On Petition for Writ of Manda1nus to the United States
Drstrict C011rt for the Eastern District of Texas in case n0.
07-CV-341, Magistrate Judge Char1es Everinghar1i, IV.
0N PET1TIoN
Before RADER, Chief Judge, NEWMAN and BRYsoN, Circu,it
Judges.
BRYSON, Circuit Judge.
0 R D E R
Cisc0 Systems, Inc. petitions for a writ of mandamus
to direct the United States District Court for the Easte1'n
District of Texas to vacate its order granting Con:11ni1
USA, LLC a new trial on issues of indirect infringement
and damages Altel'native1y, Cisc0 moves to direct the
trial court not to instruct the new jury that Cisc0 has
IN RE CISCO SYS'l‘EMS 2
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 Co:lmar, Inc., 854 F.2d
46l, 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.
C'ourt for Southern Dist. of Iowa, 490 U.S. 296, 309 (1989),
and that the right to issuance of the writ is "c1ear and
indisputable,” Allied Chem. Corp. v. Dai]‘lon, 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
retria1," that is generally insufficient to warrant manda-
mus relief. See Bcmkers Life & Cas. Co. u. Holland, 346
U.S. 379, 383 (1953) ("[I]t is established that the extraor-
dinary writs cannot be used as substitutes for appeals . . .
3 IN RE CISCO SYSTEMS
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,
lT IS ORDERED THATZ
(l) The petition for a writ of mandamus is denied.
(2) The motion for a stay is moot. .
FOR THE COURT
MAR 04 ?Ull 131 Jan H@rba1y
Date J an Horbaly
Clerk 3
cc: Henry B. Gutman, Esq.
Richard A. Sayles, Esq.
Clerk, United States District Court For The Eastern
District Of Texas, Marshall Division
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EALS FOR
RGUlT
HAR_ 04 2011
JAN HBRBAl.Y
GLERK