Scientific Nrg, Inc., Plaintiff-appellant, v. Truman Aubrey D/b/a Janmar Lighting, Defendant/cross-appellant, 884 F.2d 1397 (Fed. Cir. 1989)

ORDER

The court, sua sponte, considers whether this appeal and cross-appeal must be dismissed as prematurely filed.

On March 7, 1989, the United States District Court for the Central District of California issued "Findings of Fact and Conclusions of Law." The findings and conclusions encompassed patent unenforceability, patent noninfringement, trademark noninfringement, and unfair competition. A hearing on the damages on the unfair competition claims remains. Further, the court has not entered any judgment.

Scientific NRG, Inc. contends that the case is appealable under 28 U.S.C. § 1292(c) (2) (infringement action is appealable when "final except for an accounting"). However, the accounting that remains in this case is related to unfair competition claims not to infringment. Hence, the deferred determination of damages is not a deferred "accounting" within the meaning of Sec. 1292(c) (2). See W.L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d 614, 617 (3rd Cir. 1976).

Accordingly,

IT IS ORDERED THAT:

(1) The appeal and cross-appeal are dismissed without prejudice.

(2) No additional fees shall be required for future appeals.