Holmes v. Bendix Corp., 83-1179
| Decision Date | 29 July 1983 |
| Docket Number | No. 83-1179,83-1179 |
| Parties | Horace D. HOLMES, Plaintiff and Third Party Plaintiff-Appellee, v. The BENDIX CORPORATION, Defendant-Appellee, and DETROIT TAP AND TOOL COMPANY, Third Party Plaintiff and Third Party Defendant-Appellant, v. MICRODOT INC. Third Party Defendant-Appellee. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Thomas N. Young, Troy, Mich., for Horace D. Holmes.
Neal A. Waldrop, Troy, Mich., for The Bendix Corp. and Microdot, Inc.; Malcolm R. McKinnon, Troy, Mich., of counsel.
William J. Schramm, Mount Clemens, Mich., for Detroit Tap and Tool Co.; John E. Nemazi, Mount Clemens, Mich., of counsel.
Before MARKEY, Chief Judge, NICHOLS and BENNETT, Circuit Judges.
This action involves several parties and multiple issues of patent validity, infringement, unfair competition, and alleged violation of the antitrust laws. Detroit Tap and Tool Company (Detroit), third party plaintiff and third party defendant, did not in its pleadings seek injunctive relief. It moved under Fed.R.Civ.P. 56 for a summary judgment on the ground that without its own authorization, parties Bendix and Microdot had no license, express or implied, to practice the invention in litigation. Bendix and Microdot cross-moved, as did original plaintiff Holmes. None of the motions or cross-motions make any reference to injunctive relief, and it is apparent by reading Rule 56 itself, that summary judgment procedure is provided not for injunctive relief, but for recovery "upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment * * *."
The motion and cross-motion elicited a decision or order by District Judge Feikens to the effect, in summary, that Microdot, and Bendix by derivation from Microdot, have a license to practice the invention, to which the rights of Detroit are subordinate. This is on its face a declaratory judgment and makes no reference to injunctive relief, but Detroit says, and so far as we can see correctly says, that while it stands, injunctive relief for Detroit is precluded.
Detroit appeals from this summary judgment. Microdot and Bendix move to dismiss the appeal on the ground it is filed against an interlocutory order and we lack jurisdiction. We agree.
It is not asserted that Judge Feikens' order is a "final decision" appealable under 28 U.S.C. § 1295, as added to the Code by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164. The pleadings reveal several issues remaining to be decided. It is contended on behalf of Detroit that the order is one "granting, continuing, modifying, refusing or dissolving injunctions * * *," as described in the amended § 1292. The argument is that an order may "refuse" an injunction if by its terms it makes an injunction impossible, even if in it, injunctions are never mentioned. Among other authorities, General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1942) is cited.
The motion cites and relies on a decision of this court, Veach v. Vinyl...
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