Matsui

MEMORANDUM OF OPINION

This is an action brought by Pan-American Plant Company (“Pan American”) alleging plant patent infringement by defendant Andy Matsui d/b/a Andy Matsui Nursery (“Matsui”) in violation of the Plant Patent Act of 1930, 35 U.S.C. §§ 161-164 . In his answer Matsui has denied infringement, raised thirteen affirmative defenses, and counterclaimed against Pan-American alleging patent invalidity and violation of the antitrust laws. On July 21 and 23, 1976, the Court heard argument on defendant’s motion for summary judgment and plaintiff’s motion for partial summary judgment. On July 23, 1976, the Court denied defendant’s motion for summary judgment, granted plaintiff’s motion to dismiss defendant’s Fifth Affirmative Defense that plaintiff had failed to state a claim upon which relief can be granted, and denied without prejudice plaintiff’s motion for summary judgment as to all other affirmative defenses and counterclaims.

On December 19,1976, having found that certain exceptional conditions required that two of the issues in this action be referred to a special master, and the parties having consented, the Court referred to Magistrate Owen E. Woodruff, Jr., the…