Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 8566.

• Decision Date: 22 May 1944
• Docket Number: No. 8566.,8566.
• Parties: MERCOID CORPORATION v. MINNEAPOLIS-HONEYWELL REGULATOR CO.
• Court: U.S. Court of Appeals — Seventh Circuit

142 F.2d 549 (1944)

MERCOID CORPORATION v. MINNEAPOLIS-HONEYWELL REGULATOR CO.

No. 8566.

Circuit Court of Appeals, Seventh Circuit.

May 22, 1944.

Bair & Freeman, of Chicago, Ill., for appellant.

Henry M. Huxley and George L. Wilkinson, both of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

SPARKS, Circuit Judge.

Appellee has moved to docket and dismiss the appeal in this cause for lack of jurisdiction. The judgment from which the appeal was taken was entered by the District Court upon remand from the Supreme Court which reversed the judgment of this court (133 F.2d 811), on January 3, 1944. Mercoid Corp. v. Minneapolis-Honeywell Co., 320 U.S. 680, 64 S.Ct. 278.

The litigation was started with a suit by Mercoid for a declaratory judgment that the Freeman patent was invalid, that it did not infringe that patent, and that Honeywell had used it in violation of the anti-trust laws. About the same time, Honeywell filed suit against Mercoid for infringement of the Freeman patent, and in that suit, Mercoid filed counterclaim asking the same relief as in its declaratory judgment suit. The two were consolidated for trial. The District Court held the patent valid and infringed, but held that Honeywell was using it as a means of controlling an unpatented device contrary to the rule of Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L. Ed. 363, hence dismissed both complaints. 43 F.Supp. 878, 46 F.Supp. 675. On appeal, this court affirmed as to validity and infringement, but reversed as to the violation of the anti-trust laws. On certiorari, the Supreme Court, 320 U.S. 680, 64 S.Ct. 278, held that the efforts of Honeywell to control competition in the unpatented device did violate the anti-trust laws, and that Mercoid was entitled to be relieved against the consequences of those acts, and likewise, that Honeywell might not obtain from a court of equity any decree which directly or indirectly helped it to subvert the public policy underlying the grant of its patent. It therefore remanded the cause to the District Court for proceedings in conformity with its opinion.

Upon remand, the District Court entered the judgment from which this appeal is taken, vacating the final decree entered by it March 24, 1942, and further adjudging that Honeywell had been misusing the Freeman patent in restraint of trade, thereby violating the anti-trust laws, particularly Title 15, §§ 1, 2, and 14; dismissing its complaint, and issuing an injunction restraining it from violating the anti-trust laws, particularly Title 15, §§ 1, 2, and 14. The judgment also provided for the recovery of three-fold damages and attorneys' fees and referred the cause to a special master for the purpose of ascertaining those damages and fees. 15 U.S. C.A. § 15.

The points sought to be raised by the appeal are the exclusion from the judgment of a finding of validity of the Freeman patent and its infringement by appellee, and the inclusion of an injunction under § 3 of the Clayton Act, 15 U.S.C.A. § 14, and an order for accounting and reference to a master. Jurisdiction of this court over the appeal from an interlocutory judgment is alleged to be based on section 129 of the Judicial Code, 28 U.S.C.A. § 227, providing for appeals from interlocutory judgments granting injunctions.

Appellee bases its motion to dismiss the appeal on the ground that this court has no jurisdiction over an appeal from a judgment entered on the mandate of the Supreme Court, even though that judgment does include an injunction. We think this contention is correct. As stated in Cyclopedia of Federal Procedure, 2d Ed., Vol. 10, § 4887, "It is the established rule that no appeal may be taken from a judgment or decree entered in accordance with the mandate of the appellate court on a prior appeal, or in accordance with the mandate of the Supreme Court," and at Vol. 12, § 6398, "It is the settled rule that if a lower federal court fails or refuses to give effect to or misconstrues the mandate of the Supreme Court, the action of the court below may be controlled by the Supreme Court, either by a new appeal, or by mandamus, or action in the nature thereof * * *." Appellant contends that these rules do not...