Bergman v. Aluminum Lock Shingle Corp. of America, 14968.

Decision Date20 November 1956
Docket NumberNo. 14968.,14968.
Citation237 F.2d 386
PartiesHarry X. BERGMAN, Perma-Lox Aluminum Shingle Corporation and Victor H. Langville, doing business under the assumed name of Langville Manufacturing Company, Appellants, v. ALUMINUM LOCK SHINGLE CORPORATION OF AMERICA, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Elmer A. Buckhorn, Buckhorn & Cheatham, Robert F. Maguire, Maguire, Shields, Morrison & Bailey, J. Pierre Kolisch, Ramsey & Kolisch, Portland, Or., for appellant.

S. J. Bischoff, Portland, Or., H. H. Brown, H. A. Toulmin, Jr., Toulmin & Toulmin, Dayton, Ohio, for appellee.

Before HEALY, POPE and LEMMON, Circuit Judges.

LEMMON, Circuit Judge.

A suit for infringement was brought below by the appellee as the assignee of Korter patent No. 2,631,552, for "Aluminum Shingle", issued March 17, 1953. The complaint also charged unfair competition and prayed for a permanent injunction against manufacture, sale, use and infringement by the appellants, and a decree enjoining them from competing unfairly with the appellee, for recovery of general and special damages, etc.

The appellants denied the charges, contending that the patent is not valid and is not infringed, and they also counterclaimed for unfair competition.

By a pre-trial order, the District Judge directed that "the issues of validity of appellee's patent and infringement thereof by appellants, be segregated and tried first; that all proceedings pertaining to all of the other issues be deferred until the trial and determination of said segregated issues, and by reason thereof, this pre-trial order is limited to the issues so segregated to be first tried and determined."

The Court below found in favor of the appellee both as to validity and infringement, granting a permanent injunction and ordering an accounting by the appellants, individually and collectively.

From that decree the present appeal was taken.

Nowhere in the "decree" or judgment of the District Court is there any "express determination that there is no just reason for delay" or any "express direction for the entry of judgment", as required by Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. On the contrary, the final paragraphs of the "Decree" read in part as follows:

"The Court reserves jurisdiction to determine the amount of damages suffered by plaintiff by reason of defendants\' infringement of the said patent, including the determination of the amount of attorneys\' fees to be allowed to the plaintiff herein.
* * * * * *
"The Court reserves jurisdiction of all issues, claims and counterclaims raised by the complaint and defendants
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8 cases
  • SCHLEGEL MANUFACTURING CO. v. King Aluminum Corp.
    • United States
    • U.S. District Court — Southern District of Ohio
    • September 4, 1974
    ...in his order, American Saint Gobain Corp. v. Armstrong Glass Co., 418 F.2d 571 (6th Cir. 1969), see also, Bergman v. Aluminum Lock Shingle Corp., 237 F.2d 386 (9th Cir. 1956). It has been held many times that 28 U.S.C. § 1292(a)(4) gives a right of interlocutory appeal in a patent case wher......
  • Bergman v. Aluminum Lock Shingle Corp. of America
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 14, 1958
    ...was not a final decision, within the meaning of 28 U.S.C.A. § 1291, and was therefore not appealable. Bergman v. Aluminum Lock Shingle Corp. of America, 9 Cir., 1956, 237 F.2d 386, 387. This second appeal is on the merits. For our present purposes, the earlier opinion contains a sufficient ......
  • Sims v. MACK TRUCK CORP., ETC.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 16, 1979
    ...in the district court on all other issues joined with those of patent validity and infringement. See Bergman v. Aluminum Lock Shingle Corp., 237 F.2d 386, 387 (9th Cir. 1956), followed in American Cyanamid Corp. v. Lincoln Laboratories, Inc., 403 F.2d 486, 488 (7th Cir. 1968), and cited in ......
  • Glens Falls Indemnity Co. v. American Seating Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 16, 1957
    ...Falls Indemnity Co. v. American Seating Co., 9 Cir., 225 F.2d 838; Russell v. Hackworth, 9 Cir., 233 F.2d 503; Bergman v. Aluminum Lock Shingle Corp., 9 Cir., 237 F.2d 386; Massa v. Jiffy Products Co., 9 Cir., 238 F.2d 8 Glens Falls Indemnity Co. v. American Seating Co., supra. 9 See footno......
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