Case: 20-131    Document: 24     Page: 1    Filed: 07/17/2020




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

 In re: CROSS ENGINEERING, LLC, dba Cross Ar-
               mory, WES CROSS,
                    Petitioners
              ______________________

                         2020-131
                  ______________________

    On Petition for Writ of Mandamus to the United States
District Court for the Southern District of California in No.
3:18-cv-00871-MSB.
                  ______________________

                      ON PETITION
                  ______________________

 Before PROST, Chief Judge, MOORE and HUGHES, Circuit
                        Judges.
PROST, Chief Judge.
                        ORDER
     Cross Engineering, LLC and Wes Cross (collectively,
“Cross”) petition for a writ of mandamus directing the
United States District Court for the Southern District of
California to (1) vacate its January 17, 2020 order setting
certain terms of a settlement agreement; (2) vacate its
May 7, 2020 order denying reconsideration of its January
17, 2020 order; (3) issue an order requiring inclusion of a
different definition of “Licensed Product” in the settlement
Case: 20-131    Document: 24      Page: 2    Filed: 07/17/2020




2                              IN RE: CROSS ENGINEERING, LLC




agreement. Evolusion Concepts, Inc. (“Evolusion”) opposes
the petition and moves to dismiss. Cross replies. The par-
ties also jointly move to file a corrected non-confidential pe-
tition.
    Evolusion owns U.S. Patent No. 8,756,845 (“the ’845
patent”), which generally relates to converting a firearm
with a detachable magazine to one with a fixed magazine.
In May 2018, Evolusion brought this suit against Cross, al-
leging Cross’s magazine release products, including its
Safe Mag line of products, infringe the ’845 patent.
    On August 7, 2019, the parties agreed during a settle-
ment conference upon “[t]he basic terms of the settlement”
under which Cross would pay a lump sum for past infringe-
ment and “an ongoing royalty for every accused product
sold.” Appx. 84. They entered a “Consent to Jurisdiction
by a United States Magistrate Judge,” which stated in part
that a decision by the magistrate judge concerning a dis-
pute about the settlement “shall be FINAL AND
BINDING, WITH NO APPEAL.” Appx. 79.
    The magistrate judge ordered the parties to generate a
written agreement that confirmed the terms of their settle-
ment and to file a joint motion to dismiss by the end of No-
vember 2019. The parties, however, could not agree to a
written agreement on exactly what products would bear
royalties. Specifically, Cross objected to the inclusion of
certain kits that included the Safe Mag component.
    After a series of extensions, the magistrate judge con-
ducted a settlement disposition conference on January 7,
2020. On January 17, 2020, the magistrate judge issued
an order stating that “kits,” which “includes the package
that contains an identified licensed product plus any other
product sold by Cross Engineering within that package
that would infringe upon the ’845 Patent,” will “be royalty
bearing.” Appx. 312.
Case: 20-131    Document: 24      Page: 3    Filed: 07/17/2020




IN RE: CROSS ENGINEERING, LLC                                     3



    Cross moved to reconsider that order, which the mag-
istrate judge denied on May 7, 2020. The magistrate judge
directed the parties to include in their settlement agree-
ment a definition of “Licensed Product” that means Cross’s
Safe Mag products, “kits including such” products, and
“components from Cross Engineering or third parties that
are part of or used in conjunction with a Licensed Product,
and any product manufactured, sold, produced, or distrib-
uted, now or in the future, by Cross Engineering that would
infringe the ’845 Patent in the absence of this Agreement.”
Appx. 1045. This mandamus petition followed.
     A writ of mandamus is a “drastic and extraordinary
remedy reserved for really extraordinary causes.” Cheney
v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367,
380 (2004) (internal quotation marks and citation omitted).
Only “exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion” will jus-
tify invoking the remedy. Id. (internal quotation marks
and citations omitted). To prevail on a mandamus petition,
a party must show: (1) it has a clear and indisputable right
to relief; (2) there are no adequate alternative means by
which it may obtain that relief; and (3) the grant of man-
damus is appropriate under the circumstances. Id. at 380–
81; Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S.
394, 403 (1976).
    As an initial matter, Cross agreed on August 7, 2019,
that the magistrate judge’s decision concerning a dispute
about the settlement would be final with no appeal. That
agreement would seem on its face to waive further review
of these decisions, or at least suggest that we should not
exercise our discretion to review them. Cf. In re Dominion
Dealer Sols., LLC, 749 F.3d 1379, 1381 (Fed. Cir. 2014)
(denying mandamus relief in light of statute prescribing
that decision in question was “final and nonappealable”).
   In any event, Cross has not shown a clear and indis-
putable right to its requested relief. Cross’s position is that
Case: 20-131    Document: 24      Page: 4    Filed: 07/17/2020




4                              IN RE: CROSS ENGINEERING, LLC




licensed products should be limited to the accused prod-
ucts, which it believes are the Safe Mag products only—not
kits including those products. Pet’n at 26; see id. at 9.
Cross advances two arguments in support, neither of which
demonstrates that the magistrate judge clearly abused his
discretion.
    First, Cross argues that the complaint defined the ac-
cused products as limited to the Safe Mag products. Pet’n
26; see id. at 9 (“[T]he only products identified as ‘Accused
Products’ were Cross Engineering’s ‘magazine release’
products, namely the Safe Mag product – and not other
components in ‘kits,’ or any products sold ‘in conjunction
with,’ Safe Mag products, that are incapable of infringing
the asserted patent.”). 1 But, as Cross acknowledges, the
complaint also referenced kits as part of Evolusion’s in-
fringement allegations. Reply 5; see Appx. 60 ¶ 29 (com-
plaint stating that “[t]he [attached] chart does not set forth
all of Evolusion’s infringement theories – the AR-15 CA
Compliance Kit embodies other claims set forth in the ‘845
patent”); Appx. 1060–61 (claim chart attached to the com-
plaint concerning “Infringement of Claim 15 by CA Com-
pliance Kit”). 2



    1    To the extent that Cross contends that the defini-
tion of Licensed Product improperly covers non-infringing
components, Evolusion has represented that “[i]t has al-
ways been Evolusion’s position (and the function of Section
1.3 [of the settlement agreement]) that . . . components sold
separately from the kit are not royalty-bearing, unless they
also infringe the ‘845 Patent. That is the structure of . . .
the settlement agreement in this case.” Appx. 698.
     2   In addition, Evolusion included kits in the infringe-
ment contentions it served on Cross. See Appx. 802–04.
When the magistrate judge questioned Cross about these
contentions, Cross argued that their reference to accused
Case: 20-131    Document: 24     Page: 5    Filed: 07/17/2020




IN RE: CROSS ENGINEERING, LLC                                   5



     Second, Cross suggests that including kits among the
accused products is inconsistent with the parties’ and the
magistrate judge’s understanding during the settlement
proceedings. Reply 5–6; see Pet’n 26. Yet, as Cross states,
“[t]he term ‘Accused Product’ was not defined in the settle-
ment on the record.” Pet’n 4. And whether a kit should be
deemed an accused product, and therefore within the set-
tlement agreement’s definition of “Licensed Product,” was
an issue that received ample attention and consideration
during those proceedings. See, e.g., Appx. 481–84, 511–12
(parties’ December 5, 2019 letter briefs); Appx549–50
(Cross’s January 3, 2020 letter brief arguing that “the ex-
press statement on the record that a royalty would be paid
only on ‘every accused product sold,’ and the context of that
statement, unequivocally demonstrate that there was ab-
solutely no agreement that other than Safe Mag products
would be royalty bearing”); Appx. 254–309 (January 7,
2020 hearing transcript); Appx. 349–50 (Cross’s motion for
reconsideration arguing that “only Safe Mag products are
‘accused products’ under the settlement on the record”
based on the complaint and “supported by events at the set-
tlement conference”).
     Only “exceptional circumstances amounting to a judi-
cial usurpation of power or a clear abuse of discretion” will
justify mandamus. Cheney, 542 U.S. at 380 (internal quo-
tation marks and citation omitted). Cross consented to
have the magistrate judge decide “all disputes regarding
settlement terms arising during the documentation thereof
not resolved by the parties themselves,” Appx. 79, and
Cross has not demonstrated any judicial usurpation of
power or clear abuse of discretion in the magistrate judge’s



“instrumentalities” was different from accused “products.”
See Appx. 292. The magistrate judge rejected that pro-
posed distinction. Id. (“Well, I think that’s pretty much the
same thing . . . .”).
Case: 20-131    Document: 24      Page: 6    Filed: 07/17/2020




6                              IN RE: CROSS ENGINEERING, LLC




doing so here. Having also considered Cross’s remaining
arguments, which we find unpersuasive, we conclude that
Cross has failed to show a clear and indisputable right to
its requested relief.
    Accordingly,
    IT IS ORDERED THAT:
    (1) Cross’s petition for mandamus is denied.
    (2) Evolusion’s motion to dismiss is denied as moot.
    (3) The parties’ joint motion to file a corrected non-con-
fidential mandamus petition (ECF No. 16) is granted to the
extent that the corrected petition is accepted for filing and
the original petition (ECF No. 2) will remain under seal.
                                 FOR THE COURT

                                 /s/ Peter R. Marksteiner
         July 17, 2020           Peter R. Marksteiner
             Date                Clerk of Court

 s28
