American Cyanamid Company, Plaintiff-appellant, v. United States Surgical Corporation, Defendant-appellee, 9 F.3d 977 (Fed. Cir. 1993)

United States Surgical only opposes the motion "to the extent [American Cyanamid] seeks dismissal of its appeal without prejudice." Cyanamid requests that this court enter the dismissal with prejudice "against reinstatement of the same appeal under the same docket number and without prejudice in any other respect."

Cyanamid expresses concern that without this designation, its current motion may jeopardize future review of issues that the trial court may decide adversely to Cyanamid. However, after final judgment has issued and post-judgment motions have been ruled on, Cyanamid may appeal any adverse judgment and seek review of any rulings decided adversely to it. The preliminary injunction, of course, may be superseded by the trial court's final determinations.

In any event, this court's usual practice is to dismiss without designating the dismissal as either "with" or "without" prejudice. We follow that course here.