Case: 13-157 Document: 9 Page: 1 Filed: 08/02/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE ZOLTEK CORPORATION,
Petitioner.
______________________
Miscellaneous Docket No. 157
______________________
On Petition for Writ of Mandamus to the United
States Court of Federal Claims in No. 09-CV-0166, Judge
Edward J. Damich.
______________________
ON PETITION
______________________
Before RADER, Chief Judge, BRYSON, and WALLACH,
Circuit Judges.
BRYSON, Circuit Judge.
ORDER
Zoltek Corporation seeks a writ of mandamus direct-
ing the United States Court of Federal Claims to allow
additional discovery.
Zoltek owns United States Patent No. Re. 34,162 (the
’162 patent), entitled “Controlled Surface Electrical Re-
sistance Carbon Fiber Sheet Product.” Zoltek brought
suit in the Court of Federal Claims, alleging that the
Case: 13-157 Document: 9 Page: 2 Filed: 08/02/2013
2 IN RE ZOLTEK CORPORATION
government’s use of the F22 Fighter and B-2 Bomber jets
infringed the ’162 patent.
On June 7, 2013, the Court of Federal Claims issued
an order determining that it would be the most appropri-
ate and efficient course to bifurcate the trial and first
decide patent validity before addressing any other issue.
The court did so over Zoltek’s objection that further
discovery regarding the manufacturer of the F-22 could
yield additional evidence in regard to secondary consider-
ations of non-obviousness. The court’s order noted its
belief that the discovery sought by Zoltek would ultimate-
ly be irrelevant to the state of affairs at the time of the
invention, and that Zoltek could have already conducted
such discovery during the pendency of the litigation.
Zoltek seeks mandamus to review the Court of Feder-
al Claims’ decision to deny it additional discovery before
trial, but the arguments on which it relies do not meet our
requirements for such extraordinary relief. Specifically,
Zoltek has not shown a lack of adequate alternative
means to obtain the relief it seeks. See Cheney v. U.S.
Dist. Court for D.C.,
542 U.S. 367, 380-81 (2004). Zoltek
effectively concedes that it can obtain review of the dis-
covery issue after appeal from final judgment. See gener-
ally Am. Airlines, Inc. v. United States,
551 F.3d 1294,
1307 (Fed. Cir. 2008). Zoltek asserts prejudice in the fact
that it may take years to successfully appeal from an
adverse ruling. However, potential “judicial inconven-
ience and hardship,” is insufficient to warrant mandamus,
Bankers Life & Casualty Co. v. Holland,
346 U.S. 379, 383
(1953), and Zoltek has not established that the inability to
conduct this additional discovery effectively precludes it
from litigating the merits of its case or that trial would in
essence be a waste of judicial resources.
Accordingly,
IT IS ORDERED THAT:
Case: 13-157 Document: 9 Page: 3 Filed: 08/02/2013
IN RE ZOLTEK CORPORATION 3
The petition for a writ of mandamus is denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk
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