Case: 23-145 Document: 15 Page: 1 Filed: 12/04/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: COZY, INC.,
Petitioner
______________________
2023-145
______________________
On Petition for Writ of Mandamus to the United States
District Court for the District of Massachusetts in No. 1:21-
cv-10134-JGD, Magistrate Judge Judith G. Dein.
______________________
ON PETITION
______________________
Before REYNA, TARANTO, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Cozy, Inc. petitions for a writ of mandamus directing
the United States District Court for the District of Massa-
chusetts to vacate its July 27, 2023, order requiring pro-
duction of certain documents on Cozy’s privilege log. Dorel
Juvenile Group, Inc. opposes. We deny the petition.
I.
Cozy, which was founded by Dr. Arjuna Rajasingham,
brought this lawsuit against Dorel alleging infringement of
four of Cozy’s patents. In response, Dorel asserted
Case: 23-145 Document: 15 Page: 2 Filed: 12/04/2023
2 IN RE: COZY, INC.
counterclaims for inequitable conduct alleging Cozy made
material misrepresentations and omissions in connection
with patent prosecution and post-issuance activity before
the United States Patent and Trademark Office (PTO).
Dorel moved for the district court to compel the produc-
tion of certain documents listed on Cozy’s privilege log on
the ground that the documents were subject to the crime-
fraud exception. Among its arguments, Dorel asserted that
Cozy had misrepresented that Dr. Rajasingham prosecuted
the patents without consultation from counsel and had pur-
sued inconsistent positions in an attempt to mislead the
PTO in order to obtain a more beneficial priority date in
pursuit of Cozy’s litigation against Dorel.
Following in camera review of the documents, the dis-
trict court granted the motion in part. Applying the tradi-
tional elements for common law fraud, the district court
determined that Dorel established a prima facie case that
Dr. Rajasingham had “manipulated the PTO into recogniz-
ing priority dates to which he was not entitled,” Appx0020,
and “relied on the advice of his counsel to perpetrate a
fraud on the PTO,” Appx0021. Cozy now petitions for a
writ of mandamus challenging the district court’s ruling. *
We have jurisdiction pursuant to
28 U.S.C. § 1651(a) and
28 U.S.C. § 1295(a)(1).
II.
Mandamus is a “drastic and extraordinary” remedy to
be used “only [in] exceptional circumstances,” Cheney v.
U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380 (2004) (citations
omitted). As such, we will issue the writ only if the peti-
tioner shows that (1) it has a “clear and indisputable” right
to relief; (2) there is “no other adequate means” to obtain
the desired relief; and (3) the writ is “appropriate under the
* The district court stayed production of the docu-
ments pending our disposition of the mandamus petition.
Case: 23-145 Document: 15 Page: 3 Filed: 12/04/2023
IN RE: COZY, INC. 3
circumstances.”
Id. at 380–81 (citation omitted). Cozy has
not satisfied that exacting standard here.
Cozy has not shown that mandamus review is the only
adequate means by which it can obtain meaningful relief.
The Supreme Court has made clear that “postjudgment ap-
peals generally suffice to protect the rights of litigants and
ensure the vitality of the attorney-client privilege . . . by
vacating an adverse judgment and remanding for a new
trial in which the protected material and its fruits are ex-
cluded from evidence.” Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 109 (2009). While mandamus relief may be
available for “particularly injurious” privilege rulings,
id.
at 110, Cozy has not pointed to any unique circumstances
here that might justify our immediate review.
Nor has Cozy shown a clear and indisputable right to
relief. Although noting disagreement with the court’s con-
clusions that Dr. Rajasingham acted with the requisite in-
tent and that counsel’s advice was used in furtherance of
fraud, Cozy does not press those issues in its petition. In-
deed, Cozy expressly limits its petition to arguing that the
crime-fraud exception requires “a clear showing that the
patent would not have issued” but for the misrepresenta-
tions, which Cozy contends lacks record support here. Pet.
at 2, 4–5, 26–27. On those limited arguments presented,
we conclude that Cozy has not established a clear entitle-
ment to disturbing the court’s discovery ruling.
Cozy primarily argues that the crime-fraud exception
can only apply in the context of misrepresentations to the
PTO when a “patent would not have issued but for those
statements or omissions.” Pet. at 29. But Cozy cites only
to authorities confirming that sufficiently supported alle-
gations of misrepresentations to the PTO before the issu-
ance of a patent can justify an exception to the attorney-
client privilege. See Unigene Lab’ys, Inc. v. Apotex, Inc.,
655 F.3d 1352, 1359 (Fed. Cir. 2011). It cites no authority
holding that post-issuance misrepresentations to the PTO
Case: 23-145 Document: 15 Page: 4 Filed: 12/04/2023
4 IN RE: COZY, INC.
can never be used to pierce the attorney-client privilege.
And it is far from clear why “[a] client who consults an at-
torney for advice that will serve him in the commission of
a fraud” on the PTO following patent issuance should get
“help from the law” by shielding communications used in
commission of that fraud. See Clark v. United States,
289
U.S. 1, 15 (1933); cf.
18 U.S.C. §§ 371, 1001.
As to Cozy’s remaining challenges, mindful of our lim-
ited task on mandamus, we are not prepared to disturb the
district court’s case-specific fact findings based on the lim-
ited arguments presented in the petition. In denying man-
damus we express no view on whether Cozy’s arguments
would be successful on direct appeal. We further expect
that the communications and related documents will be
kept under seal to mitigate the potential harmful effects
caused by disclosure. See In re MSTG, Inc.,
675 F.3d 1337,
1346 (Fed. Cir. 2012). In addition, to the extent circum-
stances arise during the proceedings, it would be helpful if
the district court could indicate separately what findings it
would make with and without the documents used as a re-
sult of piercing the privilege at issue here.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for writ of mandamus is denied.
(2) Any pending motions are denied.
FOR THE COURT
December 4, 2023
Date
