Kysor Industrial Corporation v. Pet, Incorporated, 71-1916.

• Decision Date: 05 May 1972
• Docket Number: No. 71-1916.,71-1916.
• Citation: 459 F.2d 1010
• Parties: KYSOR INDUSTRIAL CORPORATION, Plaintiff-Appellant, v. PET, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

459 F.2d 1010 (1972)

KYSOR INDUSTRIAL CORPORATION, Plaintiff-Appellant, v. PET, INCORPORATED, Defendant-Appellee.

No. 71-1916.

United States Court of Appeals, Sixth Circuit.

May 5, 1972.

Harold S. Sawyer and Roger M. Clark, Grand Rapids, Mich., Warner, Norcross & Judd, Grand Rapids, Mich., on brief, for appellant.

Donald E. Degling, New York City, and Peter Armstrong, Grand Rapids, Mich., Varnum, Riddering, Wierengo & Christenson, Grand Rapids, Mich., on brief; Byron A. Roche, Bridgeton, Mo., Richard G. Heywood, Haverstock & Heywood, St. Louis, Mo., Fish & Neave, New York City, of counsel, for appellee.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and RUBIN^*, District Judge.

PER CURIAM.

Kysor appeals from an order denying its motion to remand the case to the State court from which it was removed.

Since this order is interlocutory, appeal ordinarily would await final judgment on the merits. However, Kysor's motion for a preliminary injunction also was denied. Because the case is properly before the court for review of the latter action and since the remand question is jurisdictional, the remand issue must be reached. Mayflower Industries v. Thor Corp., 184 F.2d 537, 538 (3rd Cir. 1950), cert. denied, 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951).

We reverse.

The relevant facts are undisputed and may be stated briefly. Dual Jet Refrigeration and Hussman Refrigerator¹ manufactured open display cases for food items which must be maintained at low temperatures. In these units, heating of the food by ambient air is prevented by directing a cold air curtain across the open face of the unit. The principal difference between the display cases of the respective manufacturers was in the manner of cooling the food. The Hussman units utilized a direct cooling action in which a substantial cold air flow was directed across the displayed product before forming part of the air curtain. In the Dual Jet units, the cold air was passed through ducts in the shelves, indirectly cooling the food by conduction before forming the air curtain.

Both Hussman and Dual Jet owned patents covering various aspects of refrigerated display case technology. A dispute involving these patents was settled in 1965 and a settlement agreement executed. The parties expressly covenanted not to sue one another for patent infringement so long as the cooling action used by the other was unchanged. The agreement further provided as follows:

"It is understood and agreed that . . . HUSSMAN will not depart from its present engineering and manufacturing know-how in the direction of the DUAL JET unit utilizing essentially only indirect product cooling.

* * * * * *

"It is understood and agreed that . . . DUAL JET will not depart from its present engineering and manufacturing know-how in the direction of the HUSSMAN unit utilizing direct and controlled product cooling."

Pet began manufacturing and selling display cases utilizing indirect cooling action in 1971. Kysor brought an action in the Circuit Court for Wexford County, Michigan, seeking injunctive and monetary relief. The complaint alleged that Pet's activities constituted a breach of the above-quoted provisions of the agreement. Pet...