870 F.2d 1574 (Fed. Cir. 1989), 88-1648, Epic Metals Corp. v. H.H. Robertson Co.

Docket Nº:88-1648.
Citation:870 F.2d 1574
Party Name:10 U.S.P.Q.2d 1296 EPIC METALS CORPORATION, Plaintiff-Appellee, v. H.H. ROBERTSON COMPANY, Defendant-Appellant.
Case Date:March 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1574

870 F.2d 1574 (Fed. Cir. 1989)

10 U.S.P.Q.2d 1296

EPIC METALS CORPORATION, Plaintiff-Appellee,

v.

H.H. ROBERTSON COMPANY, Defendant-Appellant.

No. 88-1648.

United States Court of Appeals, Federal Circuit

March 28, 1989

Rehearing Denied May 4, 1989.

Suggestion for Rehearing In Banc Declined June 5, 1989.

Page 1575

Walter J. Blenko, Jr., of Eckert Seamans Cherin & Mellott, Pittsburgh, Pa., argued for plaintiff-appellee. With him on the brief was Ronald W. Folino.

Arland T. Stein, of Reed Smith Shaw & McClay, Pittsburgh, Pa., argued for defendant-appellant. With him on the brief were Frederick H. Colen and James G. Uber.

Before NEWMAN and BISSELL, Circuit Judges, and BENNETT, Senior Circuit Judge.

BISSELL, Circuit Judge.

H.H. Robertson Company (Robertson) appeals from an order of the United States District Court, Epic Metals Corp. v. H.H. Robertson Co., No. 86-1714 (W.D.Pa. April 21, 1988), denying Robertson's motion to preliminarily enjoin Epic Metals Corporation (Epic) from allegedly infringing United States Patent No. 3,721,051 ('051), and from an order of the court, Epic Metals Corp. v. H.H. Robertson Co., No. 86-1714 (W.D.Pa. August 31, 1988), denying Robertson's Federal Rule of Civil Procedure 52(b) motion. We vacate and remand.

BACKGROUND

Robertson, the assignee of the '051 patent that claims an electrified floor structure, sued Epic in 1985 alleging infringement of that patent by Epic's sale of various trench sub-assemblies (1985 infringement suit). In settlement of the 1985 infringement suit, the district court entered a consent judgment providing, in pertinent part, that:

It is hereby ORDERED, ADJUDICATED AND DECREED, that a final judgment in favor of plaintiff Robertson and against defendant Epic is hereby granted and entered in this action as follows:

....

3. Subject to sentence two of this paragraph, United States Patent No. 3,721,051 was lawfully granted by the United States Patent and Trademark Office after due consideration. Claims 1, 2, 4, 6, 8, 9, 13 and 14 of said United States Letters Patent No. 3,721,051 are valid over the prior art before the United States Patent and Trademark Office during the pendency of said United States Letters Patent No. 3,721,051, and the prior art considered by the United States District Court in the trial involving said patent, H. H. Robertson Company v. Bargar Metal Fabricating Co., in the Northern District of Ohio in March 1984.

4. Defendant Epic has infringed and contributorily infringed United States Letters Patent No. 3,721,051. Specifically, Epic has infringed said Letters Patent by actively inducing others to assemble the components of bottomless electrical cable trench sub-assemblies, which Epic has referred to as "intermittent trench" and "IBT trenchduct"....

....

8. The parties do not by this Consent Judgment take a position on whether or not the trench components and resulting assembled electrified floor structure substantially as illustrated in Exhibit A attached hereto, which Epic may or may not make in the future, would be an infringement or a contributory infringement of United States Letters Patent No. 3,721,051. Defendant reserves the right to contest infringement of the structure as illustrated in Exhibit A on the basis that it is following the prior art or is an obvious modification of the prior art.

H. H. Robertson Co. v. Epic Metals Corp., No. 85-1265, slip op. at 1-3...

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