Allied-signal, Inc., Plaintiff-appellee, v. Filmtec Corporation, and the Dow Chemical Company,defendants-appellants, 915 F.2d 1583 (Fed. Cir. 1990)

ORDER

Filmtec Corporation moves to voluntarily dismiss its appeal as moot, to vacate the preliminary injunction order of the United States District Court for the Southern District of California, and to remand for further proceedings. Allied-Signal, Inc. consents to the voluntary dismissal and remand, but opposes vacatur. Allied-Signal also moves for expenses in responding to Filmtec's motion.

The district court preliminary enjoined Filmtec on May 25, 1990, specifically noting that the injunction would be in effect only until July 10, 1990, the date the patent at issue would expire. Following expiration of the patent, Filmtec filed the instant motion for voluntary dismissal of its appeal of the preliminary injunction. However, Filmtec also requested that we vacate the preliminary injunction order.

Wright, Miller & Cooper set forth the general rule:

The general practice on appeal from [moot] final judgments need not be carried over to interlocutory appeals or other special circumstances. The easiest illustration is provided by appeals from injunction orders that have expired or become moot; if the case remains alive in the district court, it is sufficient to dismiss the appeal without directing the injunction order be vacated.

Federal Practice and Procedure; Jurisdiction 2d Sec. 3533 10 at 435-36 (1984). Accord Fundicao Tupy S.A. v. U.S., 841 F.2d 1101, 1104 (Fed. Cir. 1988).

Accordingly,

IT IS ORDERED THAT:

(1) Filmtec's motion to voluntarily dismiss its appeal and to remand is granted.

(2) Filmtec's motion for vacatur of the preliminary injunction order is denied.

(3) Allied-Signal's motion for expenses is denied.