In re POSCO, a petition for a writ of mandamus now pending in the Federal Circuit, is a case for § 1782 watchers to keep an eye on. In 2012, Nippon Steel sued POSCO in Japan for trade secret misappropriation. Both firms were in the business of manufacturing grain-oriented electrical steel. POSCO brought an action for a declaratory judgment in Korea. Nippon sued POSCO for patent infringement and violations of the Lanham Act in New Jersey, while POSCO sought reexamination of Nippon’s patents in the USPTO. The patent issues were being litigated only in the United States; the trade secret issues were being litigated only abroad.
In the US case, the parties agreed on a confidentiality order to allow the exchange of highly confidential information necessary for the litigation of a patent litigation case. The order, as original entered, forbade the use of information exchanged in the foreign lawsuits. Once the order was entered, POSCO produced, so to speak, the crown jewels. Nippon then persuaded the District Court to modify the order to permit use of the confidential information in the foreign litigation. POSCO, alleging that it would suffer irreparable harm if the documents were to be sent abroad, sought a writ of manadamus.