960 F.2d 156 (Fed. Cir. 1992), 91-1140, McPherson's Ltd. v. Never Dull, Inc.

Docket Nº:91-1140.
Citation:960 F.2d 156
Party Name:MCPHERSON'S LTD, and McPherson's America, Inc., Plaintiff-Appellant, v. NEVER DULL, INC., John B. McEvily and Honora McEvily, Defendants-Appellees.
Case Date:March 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 156

960 F.2d 156 (Fed. Cir. 1992)

MCPHERSON'S LTD, and McPherson's America, Inc., Plaintiff-Appellant,


NEVER DULL, INC., John B. McEvily and Honora McEvily, Defendants-Appellees.

No. 91-1140.

United States Court of Appeals, Federal Circuit

March 20, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTAF Rule 47.6 regarding use of unpublished opinions)

1990 WL 238812


Before NIES, Chief Judge, SKELTON, Senior Circuit Judge, and LOURIE, Circuit Judge.

NIES, Chief Judge.

Appellants, McPherson's LTD and McPherson's America, Inc. (McPherson, collectively), appeal from the denial of their motion for a preliminary injunction, No. 90-2070 (D.N.J. Oct. 9, 1990). The preliminary injunction motion was requested upon McPherson's state law claims in the complaint. In addition to those claims, McPherson's complaint sought a declaratory judgment that United States Patent Nos. 4,866,845 and 4,869,027 (the '845 and '027 patents) owned by John McEvily are invalid and unenforceable. Sua sponte this court raised the issue of its jurisdiction over the appeal. Because of McPherson's failure to appropriately allege any basis for declaratory relief at the time the complaint was filed or to have any basis for such allegations, wedismiss the appeal.


McPherson designs, manufactures, distributes, and annually sells millions of dollars worth of self-sharpening knives. Never Dull, founded by John McEvily, a former employee of McPherson, produces self-sharpening knives under the '845 and '027 patents, and takes in approximately $25,000 per year. The essence of the dispute is that McEvily obtained confidential information while employed at McPherson which he is allegedly using in his competing business. As near as can be discerned, the misappropriated information concerns the idea of putting out a cheaper knife to capture a particular market niche.

This litigation began with McPherson filing suit in district court seeking ownership of the '845 and '027 patents and damages based upon claims of breach of contract, breach of trust and unfair trade practices. The complaint also sought a declaratory judgment, pursuant to 28 U.S.C. § 2201 (1988), that McEvily's two patents are invalid and unenforceable. McPherson moved for a preliminary injunction to enjoin Never Dull's production and sale of its patented knives. The district court denied the injunction because McPherson failed to establish that it would suffer irreparable harm. We, however, do not have jurisdiction to reach the merits of the district court's order.

Pursuant to 28 U.S.C. §§ 1292 and 1295 (1988), 1 this court would have jurisdiction over McPherson's appeal from the district court's order denying a preliminary injunction of its state law claims, if the jurisdiction of the district court over the complaint were based, at least in part, on 28 U.S.C. § 1338 (1988). See Beghin-Say Int'l v. Ole-Bendt Rasmussen, 733 F.2d 1568, 1570, 221 USPQ 1121, 1123 (Fed.Cir.1984). Section 1338(a) states that "district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents...." Accordingly, for this appeal to be properly before us, the jurisdiction of the district court must have rested, at least in part, on a claim arising under the patent laws.

The only count in McPherson's complaint which could possibly provide such a basis for this court's jurisdiction is the count seeking a declaratory judgment that McEvily's patents are invalid and unenforceable. That count reads in its...

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