United States Supreme Court Cases & Opinions

U.S. Supreme Court

McCullough v. Kammerer Corp., 331 U.S. 96 (1947)

McCullough v. Kammerer Corporation

No. 755

Argued April 8, 1947

Decided April 28, 1947

331 U.S. 96

Syllabus

In a patent infringement suit, an appeal may be taken under § 129 of the Judicial Code, as amended, 28 U.S.C. § 227a, from an "order" denying on the merits a motion to set aside (because of unlawful use of the patent) an earlier decree which held the patent valid and infringed and was "final except for the ordering of an accounting." Pp. 331 U. S. 98-100.

(a) Since it left nothing to be done except to conduct an accounting, the order falls squarely within § 129, as amended. P. 331 U. S. 99.

(b) Under Rule 54 of the Federal Rules of Civil Procedure, the fact that the Court designated its action as an "order," instead of a "decree," is immaterial. P. 331 U. S. 99.

(c) Nor is such an order rendered nonappealable because one appeal had already been taken. Pp. 331 U. S. 99-100.

156 F.2d 343 reversed.

In a patent infringement suit, a Circuit Court of Appeals dismissed an appeal under § 129 of the Judicial Code, as amended, 28 U.S.C. § 227a, from an order denying a motion to set aside a decree holding the patent valid and infringed and ordering an accounting. 156 F.2d 343. This Court granted certiorari. 329 U.S. 712. Reversed, p. 331 U. S. 100.

Page 331 U. S. 97