Bergman v. Aluminum Lock Shingle Corp. of America, 14968.
Decision Date | 20 November 1956 |
Docket Number | No. 14968.,14968. |
Citation | 237 F.2d 386 |
Parties | Harry 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. |
Court | U.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.
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:
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