Before MAJOR, Chief Judge, KERNER and FINNEGAN, Circuit Judges.
MAJOR, Chief Judge: Plaintiff filed its complaint against defendant for infringement of Yaeger design patent D-151,310, and for unfair competition by reason of defendant's manufacture and sale of ornaments in imitation of plaintiff's patented commercial device. Plaintiff prayed for the usual relief. The patent sued upon shows an automobile hood ornament comprising a bird-shaped body portion, referred to as the "bird," and a hood piece or ridge mounting, referred to as the "base." Plaintiff concedes "that defendant manufactures and sells the bird and not the base, that the Yaeger patent covers only the combination of the bird and base and not the bird portion, per se , and that plaintiff charges defendant with only contributory infringement."
Defendant answered the complaint, denying infringement and unfair competition, and attacked the validity of the patent on numerous grounds. Concurrently with the filing of its answer, defendant filed a counterclaim, in which it sought declaratory relief under the Federal Declaratory Judgment Act (Title 28, U.S.C.A., Sec. 2201), as to the charge of infringement and unfair competition. The defendant in its counterclaim also sought relief against the plaintiff in the form of damages, and an injunction because of an alleged conspiracy and an attempt to monopolize an unpatented a article of commerce in violation of the anti-trust laws of the United States, and particularly Title 15, U.S.C.A., Secs. 1, 2, 3, 4, 15 and 26. Upon plaintiff's motion the court, by its order of February 6, 1950, dismissed those portions of defendant's counterclaim relating to the charge of anti-trust law violation. The instant appeal is by the defendant from this order of dismissal.
Thus, after the order of dismissal, there remained as issues in the case plaintiff's charge of infringement and unfair competition by the defendant, denied by the latter, as well as that portion of defendant's counterclaim which sought a declaratory judgment. It is at once apparent, even though the question has not been raised here, that the order of dismissal is not final and that this court is without jurisdiction to entertain the appeal. Title 28, U.S.C.A., Sec. 1291 endows this court with jurisdiction of appeals "from all final decisions of the district court," subject to certain exceptions not applicable to the instant situation, and Rule 54(b) of the Federal Rules of Civil Procedure, entitled "Judgment on Multiple Claims," is directly applicable to the instant situation, as is shown by numerous cases. This court has recently, in Winsor v. Daumit et al. , 179 F.2d 475, discussed in some detail the purpose, meaning and effect to be given this rule, and no good purpose could be served in reiteration other than what was said in disposing of the appeal (page 478) which may appropriately be restated: "It might be urged that we should, instead of dismissing the appeal, enter an interim order directing the district court to make a determination of the two conditions precedent to perfection of an appeal under rule 54(b). In view of the fact that the rule itself defines the power and function of the district court, orderly procedure requires that we dismiss the appeal, leaving to the discretion of the district court, its further action in the premises."
In addition to the cited case from our own court, there are numerous cases from other courts, a few of which we shall cite which sustain the view that the instant order is interlocutory and not appealable. Etten v. Kauffman et al. , 179 F.2d 302; Flegenheimer v. Manitoba Sugar Co., Ltd. et al. , 182 F.2d 742; Kam, Koon Wan v. E. E. Black, Ltd. , 182 F.2d 146; Garbose et al. v. George A. Giles Co. et al. , 183 F.2d 513.
For want of jurisdiction the appeal is dismissed at defendant's cost.