Case: 13-168   Document: 30     Page: 1    Filed: 01/31/2014




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                IN RE HO KEUNG TSE,
                       Petitioner.
                 ______________________

                        2013-168
                 ______________________

    On Petition for Writ of Mandamus to the United
States District Court for the Northern District of Califor-
nia in No. 06-CV-6573, Judge Saundra Brown Armstrong.
                 ______________________

                     ON PETITION
                 ______________________

  Before O’MALLEY, LINN and WALLACH, Circuit Judges.
PER CURIAM.
                       ORDER
    Petitioner Ho Keung Tse (“Tse”), the plaintiff in the
underlying patent infringement action, seeks a writ of
mandamus to, inter alia, direct the United States District
Court for the Northern District of California to lift the
stay of proceedings and commence discovery. Respond-
ents Apple Inc. et al., the defendants in this case, oppose
the petition. Tse also moves to take judicial notice of
certain documents.
    In October 2007, the district court stayed proceedings
in light of the United States Patent and Trademark
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2                                                  IN RE TSE




Office’s (“USPTO”) decision to institute an ex parte reex-
amination of the patent-in-suit. The record states that
during those reexamination proceedings Tse submitted at
least fourteen filings to the USPTO that, among other
things, amended claims and added new claim 23. In
January 2011, the Board of Patent Appeals and Interfer-
ences (“Board”) sustained the patent examiner’s rejection
of a number of claims but reversed the examiner’s rejec-
tion of several claims, including claim 23 of the patent-in-
suit.
     After receiving the USPTO’s reexamination certifi-
cate, Tse served his new infringement contentions on
respondents, including allegations of infringement of
newly added claim 23. Tse also informed the district
court of the new certificate and moved to lift the stay. In
September 2013, the district court denied Tse’s motion.
The district court found that there were discrepancies
between the USPTO’s reexamination certificate and Tse’s
version of claim 23 as recited in the appendix of his ap-
peal filed with the Board and noted that there appeared
to be language missing in the certificate’s version of claim
23. Because the difference between the two versions of
claim 23 was “substantive rather than merely typograph-
ical,” the district court concluded that continuing the stay
until the USPTO clarifies the scope of claim 23 would
simplify the litigation, and thus denied the motion to lift
the stay.
    Although he does not suggest that the USPTO’s certif-
icate is currently correct, Tse now seeks a writ of manda-
mus to direct the district court to lift the stay of
proceedings. The decision to stay litigation is one com-
mitted to the sound discretion of the trial court. See
Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed.
Cir. 1983); see also Landis v. North Am. Co., 299 U.S. 248,
254–55 (1936). On mandamus review our role is not to
second-guess the trial court’s decision to stay; instead, we
look only to see whether a “rational and substantive legal
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 IN RE TSE                                                3



argument can be made in support of the rule in ques-
tion[.]” In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir.
1985); see also Bankers Life & Cas. Co. v. Holland, 346
U.S. 379, 383 (1953) (Mandamus is appropriate only if
there is a “clear abuse of discretion.”).
    When measured against this exacting standard, Tse
has not shown entitlement to relief. Under the circum-
stances, it was plausible for the district court to conclude
that continuing the stay until after a certificate of correc-
tion issued would reduce the potential risk for unneces-
sary costs and inefficiencies during discovery,
infringement and invalidity contentions, and claim con-
struction stages of the litigation. See Landis, 299 U.S. at
254 (District courts have authority to “control the disposi-
tion of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.”).
    Moreover, the delay in lifting the stay here is fairly
attributable to Tse himself, as he can request a corrected
certificate that would promptly eliminate the need for the
stay of proceedings. See 35 U.S.C. §254; Manual of Patent
Examining Procedure § 1480.01 (“Where the correction
requested was incurred through the fault of the [USPTO],
and the matter is clearly disclosed in the records of the
[USPTO], and is accompanied by documentation that
unequivocally supports the patentee’s assertion(s), a
Certificate of Correction will be expeditiously issued.”).
     In sum, this court does not discern a clear abuse of
discretion in the district court’s decision to continue the
stay of proceedings. Because this court rejects Tse’s
primary assertion of error, this court likewise denies his
requests to commence discovery and reassign the case to a
different district judge, as Tse has not shown a clear and
indisputable right to such relief.
    Accordingly,
    IT IS ORDERED THAT:
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4                                                    IN RE TSE




      (1) The petition is denied.
     (2) Tse’s motion to take judicial notice and motion to
file a reply in support of that motion are granted.


                                      FOR THE COURT

                                       /s/ Daniel E. O’Toole
                                           Daniel E. O’Toole
                                           Clerk of Court

cc: Clerk, United States District Court for the Northern
District of California

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