                         NOTE: This order is nonprecedential.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.

                                       ORDER

      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
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.




Misc. 853                                    -2-
       (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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