Atlas Scraper and Engineering Co. v. Pursche
Decision Date | 28 February 1966 |
Docket Number | No. 19404.,19404. |
Citation | 357 F.2d 296 |
Parties | ATLAS SCRAPER AND ENGINEERING CO., a corporation, Appellant, v. Harry A. PURSCHE, an individual, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
R. Welton Whann, Robert M. McManigal, Welton B. Whann, Jas. M. Naylor, San Francisco, Cal., Eugene O. Heberer, Los Angeles, Cal., for appellant.
Lyon & Lyon, Lewis E. Lyon, John B. Young, Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and KOELSCH, Circuit Judges.
This is the second appeal in these cases. Of course some considerable knowledge of the background and earlier disposition of the litigation is essential to an intelligent understanding of the present appeal. But rather than burden this opinion with a detailed statement, we refer the reader to the prior opinion 300 F.2d 467 (9th Cir. 1961), cert. denied 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170, which sets out in sufficient detail all such information.
Atlas will not be permitted to question the trial court's determination that it was guilty of unfair competition. That issue was one finally settled on the former appeal. Pertinent is the frequently quoted statement in Himley v. Rose, 5 Cranch 313, 9 U.S. 313, 3 L.Ed. 111 (1809): "Nothing is before this court but what is subsequent to the mandate."
And we find no merit in Atlas' contention that the trial court, in awarding Pursche damages for and an injunction against such competition went beyond the mandate.1
True, this court did not give express approval to the provisions in the judgment for such affirmative relief; but neither did it expressly disapprove them. The opinion, however, does contain an extensive discussion of unfair competition and, as already noted, shows this court upheld the trial court on that issue. Surely no one could argue with any degree of plausibility that so much attention would be devoted to a mere abstract matter. Nor is a practical reason difficult to discover, if what hinged upon the outcome is kept clearly in mind. Perhaps the opinion is terse, but there was no occasion to labor the obvious.
Nor did the trial court err in refusing to deny Pursche all relief on the ground that he, Pursche, had misused his own patents to violate the antitrust laws. This was a defense. But Atlas did not assert it until after the remittitur on the affirmance of the judgment.2 At that stage such a motion was improper and, if granted, would have constituted a clear violation of that court's duty to carry out the mandate.
In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895).
Further, the trial court did not err in modifying the earlier decree which enjoined Atlas from unfair competition. That a court of equity possesses inherent power to adapt an injunction to meet the needs of a new day is settled, for the Supreme Court has declared that:
United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Food Fair Stores v. Food Fair, 177 F.2d 177 (1st Cir. 1949); Armstrong v. De Forest Radio Tel & Tel Co., 10 F.2d 727 (2d Cir. 1926). The supplemental injunction, like its predecessor, was confined to preventing unfair competition; it was issued "to make more clear and specific what had already been enjoined" Singer Mfg. Co. v. Seinfeld, 89 F.2d 35, 37 (2d Cir. 1937) after a sufficient showing that Atlas had placed a construction on the original decree that was contrary to its spirit and the intention of the trial court and was threatening to act accordingly.3
Following the remittitur and after the final judgment had been settled as to form, but prior to entry, Pursche visited Chandler and sought to purchase the latter's patents. Precisely what representation Pursche made concerning the effect of the ensuing judgment is...
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