Case: 23-132 Document: 16 Page: 1 Filed: 08/16/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
2023-132
In re: REALTEK SEMICONDUCTOR CORPORA-
TION,
Petitioner
______________________
2023-132
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:22-
cv-01162-ADA, Judge Alan D. Albright.
______________________
ON PETITION
______________________
Before CHEN, MAYER, and STARK, Circuit Judges.
PER CURIAM.
ORDER
This petition for a writ of mandamus is from a patent
infringement suit brought by ParkerVision, Inc. against
Realtek Semiconductor Corporation in the United States
District Court for the Western District of Texas. When Re-
altek, which is based in Taiwan, contested the sufficiency
of service of process and did not timely file an answer to the
complaint, ParkerVision moved (though later withdrew) a
motion for leave to effect alternative service of process and
subsequently moved for entry of default. Following a
Case: 23-132 Document: 16 Page: 2 Filed: 08/16/2023
2 IN RE: REALTEK SEMICONDUCTOR CORPORATION
hearing, the district court denied the motion for default but
ordered Realtek’s appearing attorney to accept service of
process on his client’s behalf within 30 days.
Realtek now petitions to vacate that order. Before we
may issue the “extraordinary remedy” of a writ of manda-
mus, three conditions must be satisfied: (1) the petitioner
must have “no other adequate means to attain the relief [it]
desires,” (2) the petitioner must show that the “right to is-
suance of the writ is clear and indisputable,” and (3) the
court “in the exercise of its discretion, must be satisfied
that the writ is appropriate under the circumstances.”
Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380–81
(2004) (internal quotation marks and citations omitted).
Realtek has not satisfied that demanding standard. *
In general, a party seeking to vindicate its right not to
be forced to appear before a court at all must ordinarily
wait until after a final decision in order to seek appellate
review. See In re Roche Molecular Sys., Inc.,
516 F.3d 1003,
1004 (Fed. Cir. 2008); In re TCT Mobile Int’l Ltd.,
783 F.
App’x 1028, 1029 (Fed. Cir. 2019) (“Because a defendant
* We have also set out an alternative, narrow basis for
granting mandamus: where such relief “is important to
proper judicial administration.” Stingray,
56 F.4th 1379,
1382 (Fed. Cir. 2023); see also In re Micron Tech., Inc.,
875
F.3d 1091, 1096 (Fed. Cir. 2017) (granting mandamus re-
view to “reduce the widespread disparities in rulings on . .
. fundamental legal standards”). The petition before us in-
vokes this alternative basis as well as the general three-
conditions basis for mandamus. See, e.g., Petition at 11-14;
Reply at 4-7. However, we perceive here no “unusual” and
“exceptional” circumstances as are necessary to warrant
the exercise of our discretion to provide mandamus relief
under this narrow, alternative basis, Stingray, 56 F.4th at
1382, particularly given that the petition fails to satisfy
any of the three Cheney conditions for granting mandamus.
Case: 23-132 Document: 16 Page: 3 Filed: 08/16/2023
IN RE: REALTEK SEMICONDUCTOR CORPORATION 3
can obtain meaningful review of a denial of a motion to dis-
miss for lack of jurisdiction after final judgment, manda-
mus is ordinarily not available.”); In re BNY ConvergEx
Grp., LLC,
404 F. App’x 484, 485 (Fed. Cir. 2010) (“To grant
mandamus simply because a party asserts it will be forced
to expend unnecessary costs would make a large class of
interlocutory orders routinely reviewable,” “clearly under-
min[ing] the extraordinary nature” of mandamus relief).
Moreover, Realtek has not shown a clear and indisput-
able right to relief. “Before a federal court may exercise
personal jurisdiction over a defendant, the procedural re-
quirement of service of summons must be satisfied.” Omni
Cap. Int’l, Ltd. v. Rudolf Wolff & Co.,
484 U.S. 97, 104
(1987). “[S]ervice of process in a federal action is covered
generally by Rule 4 of the Federal Rules of Civil Proce-
dure.”
Id. Realtek relies specifically on Rule 4(f)(2), which
provides that “if there is no internationally agreed means,
or if an international agreement allows but does not specify
other means,” process may be served “by a method that is
reasonably calculated to give notice” as “prescribed by the
foreign country’s law for service in that country in an action
in its courts of general jurisdiction.” In support, Realtek
cites to some district court cases that have concluded ser-
vice under Rule 4(f)(2) must be administered by a court
clerk of Taiwan. Because that was not done here, Realtek
contends service is improper.
But that argument does not account for the fact that
Rule 4(f)(3), which “stands independently” and “on equal
footing” with Rule 4(f)(2), Nuance Commc’ns, Inc. v. Abbyy
Software House,
626 F.3d 1222, 1239 (Fed. Cir. 2010) (in-
ternal quotation marks and citation omitted), authorizes
courts to direct “other means” of service as long as such
means are not “prohibited by international agreement.”
While some courts in applying Rule 4(f)(3) “have looked to
whether there has been a showing that the plaintiff has
reasonably attempted to effectuate service . . . by conven-
tional means,” those considerations merely “guide the
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4 IN RE: REALTEK SEMICONDUCTOR CORPORATION
exercise of discretion, and are not akin to an exhaustion
requirement.” In re OnePlus Tech. (Shenzhen) Co., No.
2021-165,
2021 WL 4130643, at *3 (Fed. Cir. Sept. 10,
2021).
Here, we find no clear abuse of discretion in the district
court’s application of Rule 4(f)(3). Realtek identifies no in-
ternational agreement prohibiting the ordered means of
service, and other courts have concluded that “[t]his form
of service is not prohibited by international agreement, as
Taiwan is not a party to the Hague Convention or to any
other treaty or agreement with the United States regard-
ing service of process,” Wei Su v. Sotheby’s, Inc., No. 17-CV-
4577 (VEC),
2018 WL 4804675, at *3 (S.D.N.Y. Oct. 3,
2018).
Furthermore, the district court found that ParkerVi-
sion had attempted to serve Realtek in good faith and the
amount of time that the case had been around justified its
intervention. While Realtek argues that the district court
should have required ParkerVision to make more of an ef-
fort to serve via other means before resort to Rule 4(f)(3),
“[g]iven the broad discretion accorded to district courts in
determining whether to grant relief under Rule 4(f)(3),” we
cannot say that mandamus relief is warranted in these cir-
cumstances. OnePlus,
2021 WL 4130643, at *4.
We also are unpersuaded by Realtek’s argument that
service cannot be effective on its attorney, who Realtek con-
tends was not authorized to receive service and appeared
only to contest service. Realtek cites to United States v.
Ziegler Bolt & Parts Co.,
111 F.3d 878 (Fed. Cir. 1997), but
that case does not support its cause. In Ziegler, the Court
of International Trade (“CIT”) found that attempts to serve
a corporation by mailing a copy of the complaint to its at-
torney were insufficient under a CIT rule materially the
same as Rule 4(h)(1), which authorizes service for a corpo-
ration on an “officer, a managing or general agent, or . . .
any other agent authorized by appointment or by law to
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IN RE: REALTEK SEMICONDUCTOR CORPORATION 5
receive service.” We affirmed on the ground that there was
no evidence that the attorney had authority to accept ser-
vice, noting that “[t]he mere relationship between a defend-
ant and his attorney does not, in itself, convey authority to
accept service.” Ziegler,
111 F.3d at 881.
The problem for Realtek here is that none of the cases
it has cited, including Ziegler, involved Rule 4(f)(3). In fact,
other courts have held that “[t]he requirements of Rule
4(h)(1) do not carry over to Rule 4(f)(3)” and “thus have
sanctioned service on United States counsel as an alterna-
tive means of service under Rule 4(f)(3) without requiring
any specific authorization by the defendant for the recipi-
ent to accept service on its behalf.” Freedom Watch, Inc. v.
OPEC,
766 F.3d 74, 83 (D.C. Cir. 2014) (citing cases). Re-
altek points to no contrary authority.
Finally, Realtek argues that the court’s order directing
alternative service to its counsel violated its due process
rights. But it has failed to show that the means of service
was not reasonably calculated to provide notice of the ac-
tion and afford an opportunity to respond. See Mullane v.
Cent. Hanover Bank & Tr. Co.,
339 U.S. 306, 314 (1950).
Realtek has not shown that it was not in communication
with its attorney who appeared before the district court at
the hearing, and its attorney told the district court that 30
days would be sufficient to inform Realtek to file its an-
swer. Appx15. Under such circumstances, we discern no
clear and indisputable constitutional infirmity.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
August 16, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Clerk of Court
