In re Health Science Funding LLC

227 F. App'x 902

Opinion

ON PETITION FOR WRIT OF MANDAMUS

LINN, Circuit Judge.

ORDER

Health Science Funding LLC petitions for a writ of mandamus to direct the United States Patent and Trademark Office (PTO) to enter Health Science’s reply brief into the record in In re Application of Robert Duane Sofia, Serial Nos. 90/007,991 and 90/007,992. Health Science submits a supplemental petition.

The PTO ordered reexamination of Robert Duane Sofia’s two patents. The PTO’s docket sheet reflects that on November 21, 2006 a final rejection was mailed and on January 22, 2007 the patent owner submitted a response to the final rejection. Health Science submitted a reply to the patent owner’s response on February 22, 2007. On April 26, 2007, the PTO returned the reply to Health Science, stating that Health Science had no right to file a reply.

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 it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (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, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

Health Science states that there is presently an appeal pending before the Board of Patent Appeals. Health Science has not shown that it cannot attain the relief it seeks by raising the issue in the pending Board appeal or a subsequent appeal to this court. Because Health Science has not shown that it has no other means of attaining the relief sought, mandamus relief is not appropriate.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.