Jorgen v. Kierulff v. Metropolitan Stevedore Company

The appellee has moved the court for an order striking points 2 to 8, inclusive, and point 10, from appellant’s statement of points on appeal. The motion recites that it is based on Rule 75(e) and (h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Examination of the memorandum filed in support of the motion indicates that the motion is based upon the appellee’s contention that this court is not in a position to consider or pass upon any of the matters referred to in the points mentioned.

The pretrial order in this case discloses that this was an action for damages and injunction against further infringement of a designated patent issued to and owned by the plaintiff who is appellant here. Questions as to the validity of the patent, and as to the alleged infringement, were made issues by the pretrial order as well as the claim of defend ant that he had a license under the patent in suit to make, use or sell the patented structure. Evidence upon all these issues was received by the trial court.

In deciding the case, the trial court held that the plaintiff had granted to defendant an implied license in the nature of “shopright”. The court further held: “4. The Court having…