
    In re CARDIAC PACEMAKERS, INC., Guidant Sales Corporation, Mirowski Family Ventures, LLC, and Anna Mirowski, Petitioners.
    Misc. No. 819.
    United States Court of Appeals, Federal Circuit.
    June 2, 2006.
    Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.
   ORDER

NEWMAN, Circuit Judge.

Cardiac Pacemakers, Inc. et al. (Cardiac) petition for a writ of mandamus to direct the United States District Court for the Southern District of Indiana to vacate its order allowing St. Jude Medical Center, Inc. and Pacesetter, Inc. (St. Jude) to assert certain defenses that Cardiac Pacemakers argues are excluded by this court’s mandate in Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc. 381 F.3d 1371 (Fed. Cir.2004). St. Jude opposes. Cardiac replies. In the alternative to mandamus, Cardiac moves to recall and clarify the mandate and St. Jude opposes but alternatively cross-moves to recall the mandate. Cardiac replies and opposes St. Jude’s cross-motion.

In this petition the parties discuss the question of which issues are available for redetermination on remand. To the extent that our opinion may not, despite our attempts, have been sufficiently clear, we repeat that we “remand[ed] for a new trial of infringement and reassessment of damages,” Cardiac Pacemakers, 381 F.3d at 1374, including re-construction by the district court of the “determining” provision in light of our ruling that section 112 116 did not apply, Id. at 1382. We also recognized that a new claim construction may raise directly related new issues, “such as whether the now-asserted scope of the claims is supported by the specification,” Id. at 1383.

All of the other issues on appeal were finally decided, and are not subject to reopening on remand.

With respect to St Jude’s conditional cross-motion based on the Court’s decision in Unitherm Food Sys. v. Swift-Eckrich, Inc., — U.S. -, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006), both sides report that this question is being raised in the district court. It is not properly before us.

Accordingly,

IT IS ORDERED THAT:

The petition and motions are denied.  