H. J. Heinz Company, a Corporation, Appellant, v. Charles H. Owens, Appellee, 191 F.2d 257 (9th Cir. 1951)

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U.S. Court of Appeals for the Ninth Circuit - 191 F.2d 257 (9th Cir. 1951) August 14, 1951

Appeal from the United States District Court for the Northern District of California; Louis E. Goodman, Judge.

On rehearing.

Rehearing denied.

For former opinion, see 189 F.2d 505.

Frederick M. Fisk, San Francisco, Cal., William H. Parmelee, Pittsburgh, Pa. (Paul M. Duff, Christy, Parmelee & Strickland, all of Pittsburgh, Pa., Chickering & Gregory, San Francisco, Cal., of counsel), for appellant.

Morris Lowenthal, San Francisco, Cal., for appellee.

Before BONE, POPE and HASTIE,*  Circuit Judges.

HASTIE, Circuit Judge.

Appellant's separate petitions "For Correction of Errors" and "For Rehearing" assert among other things that this court has misconceived the factual basis and legal holding of a state court adjudication with reference to the matter in controversy. In one particular, appellant is correct. Owens did not claim and the state court did not find that Heinz had actually infringed the Owens patent. Rather Owens claimed and the court found only a threatened infringement. However, nothing in our decision turns upon any difference between actual infringement and threatened infringement as a basis of adjudication in the state court. The important thing is the scope of the decree of the state court with reference to future infringement. On that point, despite appellant's renewed urging to the contrary, we understand the action of the state court to have been as heretofore stated in our opinion in this case. Therefore, save for the foregoing explanatory and corrective supplementation, we adhere to our disposition of this appeal and deny the Petitions for Rehearing and for Correction of Errors.


Third Circuit, sitting by special designation