
    In re LUMENIS, INC. Petitioner.
    Misc. No. 757.
    United States Court of Appeals, Federal Circuit.
    DECIDED: Feb. 18, 2004.
    Weiss, Stephen N., Moses & Singer, New York, NY, for Petitioner.
    
      Foster, Jason H., Kremblas, Foster, Reynoldsburg, OH, for Respondent.
    Before MICHEL, SCHALL, and DYK, Circuit Judges.
   ORDER

MICHEL, Circuit Judge.

Lumenis, Inc. petitions for a writ of mandamus to vacate the order of the United States District Court for the Southern District of Ohio granting a preliminary injunction.

The remedy of mandamus is available only in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Here, Lumenis has failed to prove that it has no other means of attaining the relief desired, because Lumenis can seek review of the issues it raises by appealing the district court’s order. See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“a court of appeals has no occasion to engage in extraordinary review by mandamus ‘in aid of [its] jurisdiction,’ 28 U.S.C. § 1651, when it can exercise the same review by a contemporaneous ordinary appeal”). The proper procedure for seeking to stay or vacate an injunction is to file a notice of appeal and a motion in the district court for a stay of the injunction, pending appeal. See E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed.Cir. 1987); Standard Havens Prods. v. Gencor Indus., 897 F.2d 511 (Fed.Cir.1990); Fed. R.App. P. 8.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.  