Gte Products Corporation and Gte Valenite Corporation,plaintiffs-/cross-appellants, v. Kennametal, Inc., Defendant-appellant, 965 F.2d 1063 (Fed. Cir. 1992)

The following have been submitted:

(1) GTE Products Corporation and GTE Valenite Corporation's (GTE) motion to consolidate appeal nos. 91-1369, -1414 and 91-1441;

(2) Kennametal, Inc.'s (Kennametal) opposition thereof;

(3) Kennametal's motion to dismiss GTE's appeal no. 91-1414;

(4) Kennametal's motion to dismiss GTE's appeal no. 91-1441;

(5) GTE's opposition to both of Kennametal's motions to dismiss;

(6) Kennametal's motion for leave to file a reply to GTE's opposition in appeal no. 91-1414;

(7) Kennametal's motion for leave to file a reply to GTE's opposition in appeal no. 94-1441;

(8) GTE's opposition to both of Kennametal's motions for leave;

(9) GTE's motion to extend the time for filing its brief in 91-1414;

(10) GTE's motion to extend the time for filing its brief in 91-1441;

(11) Kennametal's opposition to GTE's motion for extension in 91-1414;

(12) Kennametal's opposition to GTE's motion for extension in 91-1441;

(13) GTE's motion to consolidated 91-1369, 91-1414, 91-1441, 92-1019, 92-1199, and 92-1200;

(14) Kennametal's opposition thereto;

(15) Kennametal's motion for leave to file new briefs; and

(16) GTE's opposition thereof.

This matter stems from GTE's patent infringement case against Kennametal in the United States District Court for the Western District of Virginia. After a jury verdict of validity and infringement Kennametal moved for JNOV on a number of issues and GTE moved for increased damages, attorney fees, and a permanent injunction. On June 13, 1991, the district court (1) denied Kennametal's motion for JNOV, (2) granted GTE's motion for treble damages, (3) granted GTE's motion for attorney fees "during the period of willful infringement" and requested affidavits detailing such fees, (4) granted GTE's motion for a permanent injunction, and (5) entered judgment.

On June 13, Kennametal appealed (no. 91-1369). On July 10, 1991, GTE filed a "protective" cross-appeal (no. 91-1414) with regard to the attorney fee issue. Before filing its cross-appeal, GTE moved for fees incurred throughout the litigation relating to willful infringement rather than those "incurred during the period of willful infringement."

On July 23, 1991, the district court denied GTE's motion concerning the scope of the fee award. GTE thereafter filed appeal no. 91-1441. Kennametal cross-appealed, appeal no. 92-1019. On January 28, 1992, the district court entered an order for the amount of attorney fees for the period of willful infringement. GTE appealed, no. 92-1199 and Kennametal cross-appealed, no. 92-1200.

GTE's protective notice of appeal, appeal no. 91-1414, is dismissed herein as unnecessary. However, it is important to note that all of the parties have appeals remaining that encompass all matters that they wish to have reviewed.

Accordingly,

IT IS ORDERED THAT:

(1) Appeal no. 91-1414 is dismissed as premature.

(2) The remaining appeals are consolidated and the revised official caption is indicated above.

(3) All motions for leave to file replies are granted.

(4) Because the issues in the most recent appeals have not been addressed in the briefs, a revised briefing schedule is set as follows:

(a) Kennametal's brief--30 days

(b) GTE's brief--30 days thereafter

(c) Kennametal's brief--21 days thereafter

(d) GTE's brief--14 days thereafter.