Library Bureau v. Yawman & Erbe Mfg. Co.

147 F. 245, 77 C.C.A. 387, 1906 U.S. App. LEXIS 4239

• Court: Court of Appeals for the First Circuit
• Decided: April 11, 1906
• Docket: No. 640
• Status: Published

Opinion

PER CURIAM.

This is a motion to dismiss an appeal by the complainant in the court below from an interlocutory decree for an injunction and an accounting in a suit for an alleged infringement of letters patent for an invention. The interlocutory decree held one of the claims of the patent valid and infringed, and the other claims invalid or not infringed, and the complainant appealed from so much thereof as related to the claims which were adjudged invalid or not infringed. Thereupon the respondent below, now the appellee, filed a motion to dismiss on the ground that the appeal was premature. The respondent below took an appeal from so much of the interlocutory decree as adjudged one of the claims valid and infringed and directed an injunction in regard to the same. The motion to dismiss this appeal must be allowed on the authority of our decision in Marden et al. v. Campbell Printing Press Co., 67 Fed. 809, 15 C. C. A. 26, a case decided by us on May 4, 1895, and also of Ex parte National Enameling Company (decided by the Supreme Court on March 19, 1906) 26 Sup. Ct. 404, 50 L. Ed. 707.

It is ordered that this appeal be dismissed, without prejudice to any proceedings in the Circuit Court, or to the right of the appellant to take any subsequent appeal, and without prejudice to any questions which may be raised' by such subsequent appeal, if lawfully taken, with costs in this court for the appellee incident to its motion to dismiss.