In Re KOKI HOLDINGS AMERICA LTD.

Case: 21-101 Document: 24 Page: 1 Filed: 11/25/2020

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

In re: KOKI HOLDINGS AMERICA LTD., Petitioner ______________________

2021-101 ______________________

On Petition for Writ of Mandamus to the United States International Trade Commission in No. 337-TA-1082. ______________________

ON PETITION ______________________

Before MOORE, O’MALLEY, and STOLL, Circuit Judges. O’MALLEY, Circuit Judge. ORDER Koki Holdings America Ltd. petitions for a writ of man- damus directing the United States International Trade Commission (“Commission”) to vacate its September 16, 2020 order instituting modification proceedings and to ter- minate the proceedings. Kyocera Senco Brands Inc. and the Commission oppose. Koki replies. In September 2017, Kyocera filed a complaint against Koki with the Commission under 19 U.S.C. § 1337. Kyoc- era alleged that Koki violated § 1337 by importing gas spring nailer products covered by claims 1, 10, and 16 of U.S. Patent No. 8,387,718 (“the ’718 patent”). The

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Commission instituted an investigation. After concluding that the products infringed the claims, the Commission is- sued a limited exclusion order against Koki gas spring nailer products that infringed the asserted claims. The Commission also issued a cease-and-desist order. Shortly thereafter, Koki requested from United States Customs and Border Protection a ruling that Koki’s rede- signed version of its nailer products did not infringe and were thus not subject to the Commission’s exclusion order. On June 30, 2020, Customs issued its ruling letter, agree- ing with Koki that its redesigned products did not infringe. On August 17, 2020, Kyocera petitioned the Commission to institute modification proceedings to determine whether the redesigned products were within the scope of the Com- mission’s remedial orders. On September 16, 2020, the Commission issued notice and ordered institution of those proceedings and referred the matter to an administrative law judge to issue a recommendation. Koki then filed this petition to challenge whether the Commission exceeded its authority in implementing those proceedings. Mandamus is “reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citation omitted). A party seeking a writ of mandamus bears the burden of demonstrating to the court that it has no “adequate alternative” means to obtain the desired relief, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989), and that the right to issuance of the writ is “clear and indisputable,” Will v. Calvert Fire Ins., 437 U.S. 655, 666 (1978) (internal quota- tion marks omitted). And “even if [those] two prerequisites have been met, the issuing court, in the exercise of its dis- cretion, must be satisfied that the writ is appropriate un- der the circumstances.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004) (citing Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)).

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Koki’s core argument is that the presumed statutory basis on which the Commission invoked these modification proceedings, 19 U.S.C. § 1337(k)(1), 1 does not provide the Commission authority to “add products to a previously-is- sued exclusion order,” which, Koki contends, is the “sole and avowed purpose” behind these proceedings. Pet. at 10– 11. But Koki has not shown that a post-judgment appeal would be an inadequate available way of raising this chal- lenge. Moreover, whatever force Koki’s argument may have on direct appeal to this court, we cannot say that it has established the right to mandamus relief. Koki cites no clear and indisputable authority that sup- ports this core contention. The text of § 1337(k)(1) does not indisputably support such conclusion. It only says that “any exclusion from entry or order under this section shall continue in effect until the Commission finds . . . that the conditions which led to such exclusion from entry or order no longer exist.” § 1337(k)(1). Nor does Koki cite any prec- edent directly on point. It cites three decisions of this court involving very different circumstances, none of which dealt with whether the Commission could institute modification proceedings at the behest of a patent owner to determine

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whether a redesigned product fell within the scope of a prior limited exclusion order. 2 It is also far from clearly indisputable that the Com- mission would be “adding” products to the exclusion order if it granted Kyocera relief, as Koki contends. The Com- mission’s limited exclusion order here was not expressly limited to the adjudicated products but rather prohibits the “unlicensed entry of gas spring nailer products and compo- nents thereof that infringe one or more of claims 1, 10, and 16 of the ’718 patent.” Appx261. The Commission’s pur- pose in commencing these proceedings is “to determine whether Koki’s redesigned products infringe asserted claims 1, 10, or 16 of the ’718 patent, and are therefore cov- ered by the LEO.” Appx². And Koki cites no precedent of this court, nor are we aware of one, that has held that an exclusion order cannot cover unadjudicated products. Koki makes an additional argument: while the Com- mission may under 19 U.S.C. § 1337(b) conduct such an in- vestigation, that statute requires it to provide several procedural and substantive rights that the Commission had not customarily provided in modification proceedings. But Koki has not shown any clear and indisputable depri- vation of rights has yet occurred. And to the extent that Koki is dissatisfied with the rights provided during the pro- ceedings and/or not provided the right to bond or Presiden- tial review, a post-judgment appeal is an adequate available remedy. Koki is not irreparably harmed by hav- ing to face the burden and expense of going through the proceedings. Cf. In re Roche Molecular Sys., Inc., 516 F.3d

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1003, 1004 (Fed. Cir. 2008) (petitioner’s “hardship [and] in- convenience” in going through trial did not provide a basis for granting mandamus (citation omitted)). Accordingly, IT IS ORDERED THAT: The petition for a writ of mandamus is denied. FOR THE COURT

November 25, 2020 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court

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Footnotes

[1] The Commission’s order cited 19 C.F.R. § 210.76(a) as its regulatory basis for authority, which says: “When- ever any person believes that changed conditions of fact or law, or the public interest, require that an exclusion order, cease and desist order, or consent order be modified or set aside, in whole or in part, such person may request, pursu- ant to section 337(k)(1) of the Tariff Act of 1930, that the Commission make a determination that the conditions which led to the issuance of an exclusion order, cease and desist order, or consent order no longer exist. The Commis- sion may also on its own initiative consider such action.”

[2] Koki cites the following decisions: VastFame Cam- era, Ltd. v. International Trade Commission, 386 F.3d 1108 (Fed. Cir. 2004); Young Engineers, Inc. v. United States In- ternational Trade Commission, 721 F.2d 1305 (Fed. Cir. 1983); and SSIH Equipment S.A. v. United States Interna- tional Trade Commission, 718 F.2d 365 (Fed. Cir. 1983).