Garter-Bare Company, an Unincorporated Association (A Limited Partnership), and Knut L. Bjorn-Larsen v. Munsingwear, Inc., a Corporation

650 F.2d 975 205 U.S.P.Q. 1165 GARTER-BARE COMPANY, an Unincorporated Association (a limited partnership), and Knut L. Bjorn-Larsen, Plaintiffs-Appellants, v. MUNSINGWEAR, INC., a corporation, et al., Defendants-Appellees. No. 75-3826. United States Court of Appeals, Ninth Circuit. April 17, 1980. As Amended on Denial of Rehearing June 5, 1980. (Appellants.) Rehearing Denied July 17, 1980. (Appellees.) Robert W. Driscoll, John E. Wagner, Lillian Tomich, San Marino, Cal., for plaintiffs-appellants. Robert T. Edell, Minneapolis, Minn., argued, for defendants-appellees; Gregory L. Roth, Minneapolis, Minn., on brief. Appeal from the United States District Court for the Central District of California. Before CHAMBERS, ELY and WALLACE, Circuit Judges. CHAMBERS, Circuit Judge: 1 In 1963 appellant Bjorn-Larsen applied for, and in 1966 he was granted, a patent for a "double layer" method of constructing ladies' girdles so as to eliminate the necessity for metal or other garters (Patent No. 3,253,599 hereinafter No. '599). His device had a double layer of fabric on the leg of the garment, with friction elements placed in the interior. When the stocking top was inserted into this fabric…

In 1963 appellant Bjorn-Larsen applied for, and in 1966 he was granted, a patent for a “double layer” method of constructing ladies’ girdles so as to eliminate the necessity for metal or other garters (Patent No. 3,253,599 — hereinafter No. ’599). His device had a double layer of fabric on the leg of the garment, with friction elements placed in the interior. When the stocking top was inserted into this fabric enclosure, the friction element closed in to support it.

In 1965 Garter-Bare, the limited partnership of which Larsen was the general partner, entered into a written agreement with appellee Munsingwear under which they were to “develop and share in the commercial application of a certain device for supporting ladies hosiery.” Garter-Bare warranted that it was the sole owner of the device and that it was properly protected by “appropriate patents and/or patents pending.” A three-stage commercial application program of research and development and licensing was agreed to. All improvements and developments of the device, or the ideas for its application and use, were to be shared by the parties.

In January 1967, Larsen applied for a patent for a single layer device, which…

concurring:

I concur with the majority and add this separate opinion only to clarify the purpose and effect of “findings of fact” when used in a summary judgment proceeding. 1 Fed.R.Civ.P. 52(a) makes it clear that findings *983 of fact and conclusions of law are not necessary for granting a summary judgment motion. Still, “findings of fact” are used by some district courts, 2 and they can serve a useful purpose.

The judicial function relative to fact-analysis on a motion for summary judgment is “limited to ascertaining whether any factual issue pertinent to the controversy exists; it does not extend to resolution of any such issue.” Nyhus v. Travel Management Corp., 466 F.2d 440, 442 (D.C.Cir.1972) (footnote omitted); see Fed.R.Civ.P. 56(c); Zweig v. Hearst Corp., 594 F.2d 1261, 1264 (9th Cir. 1979); Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 343-44 (9th Cir. 1978). A “finding of fact” by the district court in a summary judgment proceeding thus constitutes only a finding that no genuine, material issue exists as to that fact; by the nature of summary judgment, it cannot be an indication that the trial court has weighed the evidence and found a fact in the…