Leesona Corp. v. Cotwool Mfg. Corp., Judson Mills Div.

• Decision Date: 08 October 1962
• Docket Number: No. 8684.,8684.
• Citation: 308 F.2d 895
• Parties: LEESONA CORPORATION, Appellant, v. COTWOOL MANUFACTURING CORPORATION, JUDSON MILLS DIVISION, Deering Milliken Research Corporation, and Whitin Machine Works, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

308 F.2d 895 (1962)

LEESONA CORPORATION, Appellant, v. COTWOOL MANUFACTURING CORPORATION, JUDSON MILLS DIVISION, Deering Milliken Research Corporation, and Whitin Machine Works, Appellees.

No. 8684.

United States Court of Appeals Fourth Circuit.

Argued June 14, 1962.

Decided October 8, 1962.

Frederic P. Houston, Otterbourg, Steindler, Houston & Rosen, New York City, for appellee Deering Milliken Research Corporation.

Robert F. Conrad, Watson, Cole, Grindle & Watson, Washington, D. C., J. Wright Horton, Rainey, Fant & Horton, Greenville, S. C., Kester Walton, and Van Winkle, Walton, Buck & Wall, Asheville, N. C., for appellant.

James D. Poag, Price & Poag, Greenville, S. C., Granville M. Brumbaugh, and Brumbaugh, Free, Graves & Donohue, New York City, for other appellees.

Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.

HAYNSWORTH, Circuit Judge.

The plaintiff in this suit for patent infringement seeks reversal of an order severing the action as to the defendant, Whitin, transferring that action to the District of Massachusetts and staying further proceedings in the Western District of South Carolina during the pendency of the litigation in Massachusetts. The defendant, Whitin, has moved to dismiss the appeal. The motion to dismiss has been resisted on the grounds, (1) the severance and transfer can be reviewed in connection with an appeal now in this court from a subsequent appealable order, and (2) the appeal should be treated as an application for a writ of mandamus which should be granted because of abuse of discretion.

The motion to dismiss the appeal will be granted.

The plaintiff, Leesona, is the owner of United States Patent No. 2,803,105 on an Apparatus for Processing Yarn, United States Patent No. 2,803,108 on Methods for Processing Yarn, and United States Patent No. 2,803,109 on a Method for Processing Thermoplastic Yarn. It originally filed this action against Cotwool, only, alleging infringement of the three patents by Cotwool in the Western District of South Carolina. Thereafter, the defendant, Whitin, instituted an action against the plaintiff, Leesona, in the District of Massachusetts. In that action Whitin sought a declaratory judgment that Leesona's patents were invalid and not infringed by the "F T" machine or by its operation. It alleged that the "F T" machine was of foreign manufacture, that Whitin was the selling agent for the "F T" machine in the United States, and that Leesona was charging Whitin's customers with infringement and had filed an action against Whitin's customer, Cotwool.

Thereafter Leesona, in this South Carolina action, moved to make Whitin and the defendant, Deering Milliken Research Corporation, additional defendants, and this motion was granted. There followed Whitin's motion to sever and transfer to Massachusetts which was granted by an order filed on April 20, 1962, which also stayed further proceedings in the remaining action against Cotwool and Deering Milliken.

Still later, on April 25, 1962, an order was entered upon a motion of Deering Milliken enjoining the plaintiff, Leesona, from taking further steps in an arbitration proceeding it had instituted against Schwarzenbach Huber Company. Schwarzenbach Huber had been licensed by Leesona to practice the claimed inventions of the three patents. It had also acquired through Whitin some of the "F T" machines which Leesona claims to infringe its patents, and Schwarzenbach Huber's use of the "F T" machines was authorized by a license it held from Deering Milliken. In the arbitration proceeding, Leesona claims additional royalties under its license of Schwarzenbach Huber, based upon Schwarzenbach Huber's production upon its "F T" machines. Leesona's prosecution of the arbitration proceeding was enjoined on the theory that it involved the same issue of patent infringement and its prosecution threatened irreparable injury to Deering Milliken and to Whitin, respectively Schwarzenbach Huber's licensor and vendor.

Leesona filed a timely notice of appeal from the injunctive order of April 25, 1962.

Originally, Leesona contended that, while the order of severance and transfer of April 20, 1962 is not, of itself, appealable,¹ it should be reviewed in connection with our review of the appealable injunctive order of April 25, 1962. In a post hearing memorandum, however, Leesona concedes the infirmity of this contention, for the order of severance and transfer as to Whitin does not underlie, and is unrelated to, the subsequent injunctive order against prosecution of the arbitration proceeding. Appeal from the subsequent appealable order will neither require nor permit our consideration of the earlier, but unrelated, unappealable order.

There remains the question which arises out of the request that we treat the appeal from the order of April 20, 1962 as a petition for a writ of mandamus to the District Judge.

If there appeared such an abuse of discretion on the part of the District Judge as to warrant mandamus, we could treat the purported appeal as an application for it, or, at least, we could grant leave to Leesona to file a proper application.² We do not find, however, any such abuse of discretion.

Leesona and Whitin are competitors. Each is a manufacturer and seller of textile machinery. Each is incorporated under the laws of Massachusetts. Whitin has its principal place of business in that state. Leesona's principal place of business is at...