In Re Allvoice Developments U.S. LLC , 388 F. App'x 996 ( 2010 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
(INTERFERENcE No. 105, 746)
IN RE ALLVOICE DEVELOPMENTS US LLC,
Petitioner.
Misce1laneous Docket No. 948
On Petiti0n for Writ of Mandamus to the United
States Patent and Trademark Office, Board of Patent
Appea1s and Interferences.
ON PETITION FOR VVRIT OF MANDAMUS
Before RADER, Chief Judge, BRYSON and MOORE, Circuit
Judges.
RADER, C'hief Judge.
0 R D E R
A11voice DeVe1opments US LLC petitions for a writ of
mandamus directing the United States Patent and
Trademark Office, Board of Patent Appea1s and Interfer-
ences to vacate its decision declaring an interference and
remand the application to the examiner for further prose-
cution or to order the Board to issue a show cause order
IN RE ALLVOICE 2
why judgment should not be entered against the applicant
and to stay all deadlines in the interference
The PTO proceedings involve U.S. Patent No.
5,799,272 (the ‘272 patent), issued August 28, 1998 and
assigned to - Allvoice, and patent application no.
09/35_1,542, the application in interference, which is
assigned to Advanced Voice Recognition Systems, Inc.
(AVRS). The application in interference is a continuation
of a patent application no. 08/566,077, filed on November
13, 1995, and includes claims copied from the ‘272 patent.
The PTO declared an interference between Allvoice and
AVRS on March 9, 2010, with AVRS designated the senior
party.
The writ of mandamus is available in extraordinary
situations to correct a clear abuse of discretion or usurpa-
tion of judicial power. In re C'almar, Inc., 854 F.2d 461,
464 (Fed. Cir. 1998). A party seeking a writ bears the
burden of proving that it has no other means of obtaining
the relief desired, Ma£lard v. U.S. Dist. C't. for S. Dist. of
Iowa, 490 U.S. 296, 309 (1989), and that the right to
issuance of the writ is "c1ear and indisputable," Allied
Chem. C'orp. v. Daiflon, Inc., 449 U.S. 33, 35 (198O).
Allvoice argues that the PTO’s declaration of an inter-
ference without a written record is arbitrary, capricious,
and unlawful under the Administrative Procedure Act, 5
U.S.C. §706. Allvoice contends that pursuant to this
court’s decision in Agilen,t Techs., Inc. v. Affymetrix, Inc.,
567 F.3d 1366 (Fed. Cir. 2009), claims copied by an appli-
cant must be construed in accord with their originating
specification Allvoice argues that the Director of the PTO
failed to form a lawful opinion as required by 35 U.S.C.
§ 135(a) that an interference exists Allvoice asserts that
any such opinion was “based upon erroneously construing
3 IN RE ALLVOlCE
the copied claims in view of the applicant’s specification,
contrary to Agilent."
The court determines that Allvoice has not shown
that it has a clear and indisputable right to issuance of a
writ of mandamus. In essence, Allvoice’s petition asserts
that the PTO did not apply the correct law in determining
whether an interference exists. However, Allvoice has not
demonstrated that any error by the PTO cannot be cor-
rected through an ordinary appeal after the PTO proceed-
ings have concluded. Thus, Allvoice has not shown that it
has no other means for attaining the relief it seeks and
the petition is denied.
Accordingly,
IT ls 0RDERED THAT:
The petition is denied.
FoR THE CoURT
/s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Chris P. Perque, Esq. 3 ppg
Raymond T. Chen, Esq. ' '- ' ll
Char1es L. Gholz, Esq. wm
317 1ANn0nBALv
CLERK