Graco, Inc., Plaintiff-appellant, v. Binks Manufacturing Company, Defendant-appellant, 1 F.3d 1253 (Fed. Cir. 1993)

Graco, Inc. moves to dismiss Binks Manufacturing Company's appeal as premature. Binks responds.

On April 21, 1993, the district court in this case issued "Findings of Fact and Conclusions of Law" determining issues of validity, enforceability, and willful infringement. The clerk entered the order on docket on April 22. On April 22, another order issued stating: "The opinion issued today requires a liquidation of damages and attorney's fees; a pretrial conference on those issues will be held on ... June 28, 1993." Graco subsequently filed a motion for entry of final judgment embodying the findings and conclusions and seeking prejudgment interest and entry of a permanent injunction. Binks appealed. Binks states that it "welcomes the guidance of the Court as to the proper time for appeal on the particular facts of this case."

We agree with Graco that Binks' appeal is premature. There has been no entry of judgment on a separate document as required by Fed. R. Civ. P. 58. Moreover, Graco's outstanding request for a permanent injunction remains to be decided. Thus at the present stage, the case is not "final except for an accounting." See 28 U.S.C. § 1292(c) (2).

Accordingly,

IT IS ORDERED THAT:

Graco's motion to dismiss is granted.