Kenneth W. Hunter, D/b/a Hunter's Calculators, Plaintiff-appellant, v. Fisons Corporation, Defendant-appellee, 776 F.2d 1 (5th Cir. 1985)

Appellant Hunter complains that a dosage calculator for a pharmaceutical drug, confected by him and submitted to the appellee for possible use, was appropriated by it without compensation to or permission from him. The trial court found as a fact, however, that the calculator produced by appellee was confected by a Dr. Wyatt, who did not "know of or use anything from the plaintiff's prototype calculators when he devised his calculator that the defendant adopted."

This holding is amply supported by record evidence, including the direct testimony of Wyatt, and is fatal to Hunter's appeal. Whether or not Mr. Hunter's device constituted a trade secret, and whether or not a confidential relationship existed between him and the appellee--issues also decided adversely to Hunter by the trial court--if appellee made no use of his device, it is patent that he has no claim against it.

All of the above should have been obvious from the outset of this appeal, which was foredoomed by the court's amply-supported finding of no use by appellee of appellant's device. Such an appeal is frivolous. Warren v. Illinois Central Gulf Railroad Co., 768 F.2d 709 (5th Cir. 1985). We therefore grant appellee's prayer for relief pursuant to Rule 38, Federal Rules of Appellate Procedure, award to appellee costs and reasonable attorneys' fees expended in responding to the appeal, and remand for calculation of these amounts.

AFFIRMED and REMANDED.