            NOTE: This order is nonprecedential.

  ijliniteb ~tate5 (!Court of ~peaI5
         for tbe jfeberaI (!Circuit

     IN RE ANDRX PHARMACEUTICALS, INC.,
                   Petitioner.


                 Miscellaneous Docket No. 943


On Petition for Writ of Mandamus to the United States
District Court for the Southern District of New York in
case no. 99-CV-9887, Judge Barbara S. Jones.


     ON PETITION FOR WRIT OF MANDAMUS


Before   LINN,   DYK, and PROST, Circuit Judges.
PROST, Circuit Judge.

                           ORDER

    Andrx Pharmaceuticals, Inc. (Andrx) petitions for a
writ of mandamus to direct the United States District
Court for the Southern District of New Ycirk to vacate its
orders granting, inter alia, Astra Aktiebolag et al. (As-
tra),s motion for leave to supplement its complaint to
include claims for monetary damages. Astra opposes.
IN RE ANDRX PHARMA                                       2

    This petition stems originally from a Hatch-Waxman
suit brought by Astra to prevent Andrx from bringing to
market a generic version ofPrilosec®, Astra's gastric acid
inhibiting drug. At the time Astra filed its complaint, the
only alleged act of infringement was Andrx's filing of its
Abbreviated New Drug Application (ANDA). Because
Astra's only available remedy for such activity was In-
junctive in nature, a bench trial was held.

    After a bench trial was held on some of the patent
claims asserted, the court entered a Rule 54(b) judgment
of infringement. The court also entered an injunction
against Andrx. Andrx appealed, seeking review of the
court's infringement and validity determinations. In
December of 2003, we affirmed those determinations.
Meanwhile, the district court completed its proceedings
and issued a final judgment in favor of Astra with regard
to the remaining claims. Andrx appealed and in April of
2007, we again affirmed.

    After the issuance of our mandate, Astra moved for
leave to file a supplemental amended complaint. Astra
sought to allege additional facts and sought monetary
damages relating to Andrx's manufacture of batches of its
generic product for validation purposes. These validation
batches were discovered close in time to the beginning of
the bench trial. Andrx opposed the motion, arguing that
the prior judgment and mandate rendered those claims
final. Andrx further argued that allowing Astra to sup-
plement its complaint now would be prejudicial because
had the damages relief claims been tried with the equita-
ble relief claims, Andrx would have receiyed a jury trial
on all claims.

   The district court granted Astra's motion. The court
explained that Astra was not barred from amending its
complaint because the basis of the supplemental pleading
3                                       IN RE ANDRX PHARMA

occurred after the filing of the original pleading. The
court added that damages relief was not at issue during
the bench trial and therefore was not precluded by the
judgment or mandate. The court also determined that
Andrx would not be unfairly prejudiced by the delay in
supplementing the complaint.

    A party seeking a writ of mandamus bears the burden
of proving that it has no other means of obtaining the
relief desired, Mallard v. U.S. Dist. Court for S. Dist. of
Iowa, 490 U.S. 296, 309 (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 (1980).

    In the papers submitted, Andrx has not sufficiently
demonstrated that the district court has evaded our prior
mandate by allowing Astra to amend its complaint.
Andrx has also not shown why it cannot effectively raise
any challenge to the district court's determination to
allow Astra's damages claim after an appeal from final
judgment. See generally Datascope Corp. v. SMEC, Inc.,
962 F.2d 1043, 1045 (Fed. Cir. 1992) (noting that on
direct appeal, this court reviews a district court's decision
to grant or deny leave to amend a complaint under the
"abuse of discretion" standard). Extraordinary writs are
not substitutes for appeals, even if hardship may result
from delay and perhaps unnecessary trial. Bankers Life
& Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).

    Andrx cites several cases for the proposition that
mandamus may issue to preserve an improperly denied
Seventh Amendment right to a jury trial. Here, however,
there is no right to jury trial that we cil.O preserve by
issuing mandamus. The infringement and validity trial
has already occurred, and Andrx is not entitled to a jury
trial on issues already tried during the bench trial on the
equitable claims. See Park lane Hosiery Co., Inc. v. Shore,
IN RE ANDRX PHARMA                                            4

439 U.S. 322, 331 (1979) ('''At common law, a litigant was
not entitled to have a jury determine issues that had been
previously adjudicated by a chancellor in equity."');
Katchen v. Landy, 382 U.S. 323 (1966) (holding that a
court sitting in equity is empowered to adjudicate equita-
ble claims prior to legal claims, even though the factual
issues decided in the equitable action would have been
triable by the jury if the legal claims had been adjudi-
cated first.).

    Although Andrx frames its arguments as involving a
Seventh Amendment right to a jury trial, its arguments
appear to be in support of how it was prejudiced in the
district court's decision to allow Astra leave to supplement
its complaint. Again, that issue can effectively be raised
on appeal after final judgment. Because Andrx has not
demonstrated a right to an extraordinary writ, we deny
the petition.

      Accordingly,

      IT IS ORDERED THAT:

      The petition for a writ of mandamus is denied.

                                    FOR THE COURT



      OCT 272010                     /s/ Jan Horbaly
         Date                       Jan Horbaly
                                    Clerk
cc: Claude M. Millman, Esq.
    Errol B. Taylor, Esq.
    Clerk, United States District Court for the Southern
District Of New York
s19                                      U.S. COU..fl"'PI!ALS FOR
                                            THE FED~rCIRCUIT

                                              OCT 21 ~al0
                                               JAN HORBALV
                                                  ClERK
