Appendix — Garter-Bare Co. v. Munsingwear, Inc.

Supreme Court brief1984

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WHE OUPIErieg VOU, U.d,

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No. o-!G3 : rr

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

GARTER-BARE COMPANY, a limited partnership,

and KNUT L. BJORN-LARSEN,

Petitioners,

vs.

MUNSINGWEAR, INC., a

Corporation, Respondent.

(Non-Patent Documents)

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit

DRISCOLL & TOMICH

Robert W. Driscoll

Lillian Tomich

2297 Huntington Drive

San Marino, CA 91108

CHARLES ALAN WRIGHT

727 East 26th Street

Austin, TX 78705

CHARLES E. McCLUNG, SR.

24012 Calle de la Plata

Laguna Hills, CA 92653

Attorneys for Petitioners

JOHN E. WAGNER

3541 Ocean View Boulevard

Glendale, CA 91208

(818) 957-3340

Counsel of Record for Petitioners

July 2, 1984

APPENDIX

(NON-PATENT DOCUMENTS )

TABLE OF CONTENTS

PAGE

OPINION OF THF COURT OF APPEALS....+e.06- l

RULINGS ON PFTITIONS FOR REHFARING,.....72

OPINION OF THE DISTRICT COURT... cece e el?

CROSS-RFFERENCE TABLE

[References in Rody of Petition to Portions

of Appendix, Corrected to Reflect Final

Appendix Page Numbers]

REFERENCF IN PETITION

Petition Refers CORRECT RFFERENCF

Page To IN THIS APPENDIX

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49 AebGiicatrectavihesaee

GARTER - RARF COMPANY, an unincorporated

association (a limited partnership), an

Knut L. Rjorn-Larsen, Plaintiffs and

Appellants,

Vv.

MUNSINGWEAR INC., a corporation, et al.,

Nefendants-Appellees.

Nos. 82-5270, 82-5439

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 26, 1983

Decided Jan. 13, 1984.

On remand of 650 F.2d 975, the United

States District Court for the Central

District of California, Jesse W. Curtis,

H., rendered verdict for limited

partnership and its general partner

qranting them judgment for breach of

contract, royalties for patent

infringement, compensatory and punitive

damages for fraud and damages for trade

secret misappropriations. Defendant moved

for judgment notwithstanding the verdict or

for a new trial and district judge granted

judgment n.o.v. as to all but fraud claim,

and appeal was taken. The Court of

Appeals, Chambers, Circuit Judge, held

that: (1) contract claim was barred by

California statute of limitations;

(2) district judge's conclusion that

claimed patentable aspects of device were

not known and that limited partner had not

produced anything beyond ordinary skill in

the art, -was not clearly erroneous;

(3) fraud claims were not bharred by

limitations; (4) question of trade secret

infringement was for the jury; and

(5) question of tortious interference with

See,

prospective business advantage was for the

jury.

Reversed in part and affirmed in part

and remanded.

Ely, Circuit Judge, filed an opinion

dissenting in part.

1. Federal Courts 765

The standard for reviewing judgments

n.O.v. is the same for the Court of Appeals

as it is with the district courts.

2. Federal Civil Procedure 2610

Judgment n.o.v. is proper if evidence

permits only one reasonable conclusion as

to the verdict.

3. Federal Courts 801 On appeal from

judgment n.o.v., the Court of Appeals

views evidence in the light more favorable

to party against whom motion is made.

4, Limitation of Actions 44(1)

Where parties to contract for a proqram

for commercial application of a process for

garterless device for supporting women's

hosiery intended that payments under

contract he made at first of the month,

California four-year statute of limitations

for contract actions began to run when the

first of three disputed payments were not

paid and since plaintiff failed to file

complaint within the four-year period,

action for alleged breach of contract was

barred. West's Ann.Cal.C.C.P. §337, subd.

5. Patents 314(5)

Obviousness of a patent is a question

of law for the courts.

6. Patents 324.55(4)

In action alleging infringement of a

patent for the process of making effective

Single-layer garterless panty-aqirdle leg,

district judge's conclusions that claimed

patentable aspects of the device were not

novel and that inventor had not produced

anything beyond ordinary skill in the art

but rather that his claimed novelty was

reflected in two patents that had not been

hefore the patent examiner were not clearly

erroneous. Fed.Rules Civ.Proc.Rule 52(a),

28 U.S.C.A.

7. Federal Civil Procedure 2141

Disputed fact issues are within the

province of trier of fact.

8, Limitation of Actions 100(11)

Complaint alleging fraud in connection

with a patent was not barred by California

statute of limitations for fraud, although

defendant contended that a reasonable

person would have discovered fraud earlier

and that fraud issue was time-harred;

notice of violation of contract or patent

rights did not trigger a duty to inquire as

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to possible fraud under reasonable person

notice requirements of the California

statute of limitations. West's

Ann.Cal.C.C.P. §338, subd. 4.

9, Torts 10(5)

One who discloses or uses another's

trade secret, without a privilege to do so,

is liable to the other if he discovered

secret by improper means, or hid disclosure

or use constitutes a breach of competence

reposed in him by the other in disclosing

secret to him.

10, Fraud 27

In action alleging infringement of

trade secrets, there was substantial

evidence that plaintiff did possess

valuable secrets which he disclosed

confidentially to defendant pursuant to

. their agreement prior to issuance of

plaintiff's patents and that defendant

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merchandised garment that was very closely

similar to plaintiff's process, however,

questions of existence of confidential

relationship, fradulent motive and timing

and notice of defendant's abanddiiment of

project, and continued use of plaintiff's

information and ideas were for the jury.

as Fores © 10(3)

To recover on a claim for tortious

interference with a prospective business

advantage under California law, plaintiff

must establish existence of special

economic relationship between plaintiff and

third parties that may economically henefit

Plaintiff, knowledge by defendant of that

relationship, intentional acts hy defendant

designed to disrupt relationship, actual

disruption of relationship, damages to

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defendant that formerly accrued to

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12. Torts 28

In action alleging tortious

interference with a prospective business

advantage, question of whether there was

tortious interference by defendant with

plaintiff's ability to obtain any

successful commercial advantages with

others was for the jury.

John E. Wagner, Glendale, Cal., Lillian

Tomich, Robert W. Driscoll, Driscoll &

Tomich, San Marino, Cal., for plaintiffs

and appellants.

Lawrence C. Brown, Faegre & Renson,

Minneapolis, Minn., Leonard Janofsky, Paul,

Hastings, Janofsky & Walker, Los Angeles,

Cal., PNouglas J. Williams, Merchant, Gould,

Smith, Fdell, Welter & Schmidt, Dwight H.

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Oglesby, Minneapolis, Minn., for

defendant-appellees.

Appeal from the United States District

Court for the Central District of

California.

Refore CHAMBERS, FLY and WALLACE,

Circuit Judges.

CHAMRFERS, Circuit Judge:

This action was filed by Garter-Rare, a

limited partnership, and by Larsen, its

general partner, in California Superior

Court on January 20, 1972, and was then

removed to the Nnited States District Court

where summary judgment was rendered in

favor of the defendant, Munsingwear. In

Garter-Rare v. Munsingwear, 650 F.2d 975

(9th Cir. 1980), (hereafter "Garter-Rare

I") we reversed the summary judgement on

the ground that there were triable issues

of fact that precluded its use. On remard,

the jury rendered its verdict for the

Dlaintiffs granting them $3,000 for breach

of contract, royalties (in an amount to be

determined) of 7% for patent infringement,

$500,000 for trade secret misappropriation,

and $15 million compensatory damages and an

additional $15 million as punitive damages,

for fraud.

Munsingwear moved for judgment

notwithstanding the verdict or for new

trial and thereafter made a second motion

for new trial, now alleging the discovery

of new evidence. The district judge

granted judgment n.o.v. as to all but the

fraud claim, or a new trial if the judqment

n.O.v. were overturned. He granted a new

trial on the fraud claim, but thereafter

granted summary judgment in favor of

Munsingwear on the ground that the claim

was barred by the California statute of

limitations (C.C.P. §338(4)). An

interlocutory appeal from the final

judgment (No. 82-5270) merged with an

appeal from the final judgment (NO,

82-5439), after the order for summary

judqment on the fraud issue had been

entered. The complaint is stated in

several claims, We will discuss them

separately and, as we do so, the

interrelatianship of the claims will become

self-evident.

Contact Claims

fll Judgment n.o.v. was granted as to

the claims founded on the written contract

executed by the parties, on the hasis that

they were barred by the four-year statute

of limitations under California law (C.C.P.

§337{1)). The standard for reviewing

judgments n.o.v. is the same with this

Court as it is with distrect courts and it

a ee ek e

applies not only to the contract claims,

but to other claims raised by the complaint

(see infra).

[2,3] Judgment n.o.v. is proper if the

evidence permits of only one reasonable

conclusion as to the verdict. California

Computer Products v. International Rusiness

Machines Corp., 613 F.2d 727, 733 (9th Cir.

1979); Fountila v. Carter, 571 F.2d 487

(9th Cir. 1978). On appeal from judqment

n.O.V., we view the evidence in a light

most favoarable to the party against whom

the motion is made. Shakey's Inc. v.

Covalt, 794 F.2d 426, 430 (9th Cir. 1983);

Kaplan v. Burroughs Corp., 611 F.2d 286,

290 (9th Cir. 1979). The key issue is that

of the existence of substantial evidence to

support the jury's verdict.

In their Agreement of July 9, 1965, the

parties agreed to a three-phase program for

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the commercial application of the Larsen

process for a garterless device for

supporting women's hoisery; a six-month

research and development phase, followed by

a two-year phase during which Munsingwear

would have an exclusive license, followed

by a third phase during which the parties

would have proceeds from industry-wide

licensing.

Executed contemporaneously with the

Agreement, which by its terms said nothing

about cancellation, was a First Amendment

to the Agreement, providing such right to

hoth parties. The provision giving

Munsingwear this right stated that it might

cancel:

--eupon 90 days -prior written notice to

the license Garter-Rare; however, any

and all royalties due and accruing to

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shall be paid within 30 days of

cancellation."

A Seccnd Amendment extended the

original six-month research and development

phase for six months and provided for

monthly payments of $1000 per month, "or

said Agreement is terminated as provided

for therein." The collaboration of the

parties continued at times without any

formal extension of the research and

development period. Rut a Third Amendment

was executed extending it for a six-month

period, to expire on January 1, 1968, and

its wording was substantially the same as

the Second Amendment.

In Garter-Rare I, we held that disputed

fact issues relating to the contract claims

precluded pretrial summary judment based on

the statute of limitations (C.C.P.

§337(1)). At the trial, on remand, the

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jury determined that a letter from

Munsingwear on December 22, 1967, was

accepted by Garter-Rare "as a termination

of the agreement to pay the $1000 per

month", but that Garter-Rare "retained its

claims to the three monthly payments which

it contends was [sic] due it." The jury

also specifically found that the parties

did not mutually intend the research and

development phase to be extended heyond

January 1, 1948,

[4] Given these findings as the intent

of the parties we conclude, with the

district judge, that the four-year statute

of limitations began to run at least by

December 22, 1967, or surely by January l,

1968 when the first of the three disputed

$1000 payments was not paid. In any event,

by January 18, 1968, when Munsingwear

notified Garter-Rare that it intended to

make no further payments.

In Garter-Rare I, 650 F.2d at 979, we

unwisely did what we had chastised the

district judge for doing, i.e.,

anticipating the jury on questions of fact.

Our statement that C.C.P. §337(1) could not

begin to run until the first payment was

due and was not paid (which we stated would

be thirty : ys after December 22), was not

accurate and we retract it. The terms of

the Agreement called for payment at the

first of the month; this is what the

parties agreed to. Therefore, the failure

or refusal of Munsingwear to make the

payment due on January 1, 1968, was of

unquestionable significance in the factual

history of the case. As the complaint was

not filed until January 20, 1972, judgment

n.O.Vv. was the appropriate action for the

PMP ASTER AD TRE PV et ae

district court to take on the issue of

the claims based on written contract.

Patent Claims

The amended complaint claims infringe-

ment of the Larsen patent, namely his '748

patent for a process of making an effective

single-layer garterless panty-girdle leg.

At the time that the parties executed their

Agreement, in 1965, Larsen warranted that

the device that he was disclosing to

Munsingqwear either was, or would be,

covered by patents. The process referred

to at that time was for a double-layer cuff

on the girdle leg. The jury accepted his

contention that the parties "by their

conduct mutually intended that the research

and development program he extended to

include the single-layer garment." There

is substantial evidence to support their

Findings on this issue. The jury also held

that Larsen's single layer patent,

thereafter obtained as '748 was valid and

that it had heen infringed by Munsingwear.

[5,6] The district judge granted

judgment n.o.v. on the ground of the

obviousness of the '748 patent, accepting

the jury verdict as advisory only, and as

was his right exercising the duty to

determine the issue of obviousness as a

matter of law. Appellants appropriately

concede that obviousness is a question of

law for the court. Sarkisian v. Winn-Proof

Corp., 688 F.2d 647, 651 (9th Cir. 1982),

cert. denied sub nom. Carsonite Inter-

national Corp. v. Carson Mfg. Co., __ U.S.

__, 193 S.Ct. 1499, 75 L.Fd.2d 930 (1983).

However, they contend that the district

judge did not review the Larsen patent

claims against the standard set by Graham

v. John Deere Co., 383 U.S. 1, 17 86S, Ct.

684, 693, 15 L.FD.2d 545 (1966), i.e., by

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considering 1) the scope and content of the

prior art, and 2) the differences between

the prior art and the claims at issue, and

3) the level of ordinary skill in the art.

We must reject their argument on this

score. The district judge held that the

claimed patentable aspects of the '748 de-

vice were not novel and that Larsen had not

produced anything heyond the ordinary skill

in the art, but rather that his claimed

novelty was reflected in two patents that

had not been before the patent examiner.

We cannot say on this record that the

district judge's conclusions were clearly

erroneous. F.P. Civ.?. 52(a); Sarkisian w,

winn-Proof Corp., supra, at 651. The

judgment n.o.v. on this issue is affirmed;

the jury's award of royalties based ont he

Claimed infringement of the '748 patient is

reversed.

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Fraud Claims:

The jury awarded Garter-Bare $15

million as compensatory damages for

Munsingwear's fraud and also awarded

Gartre-Bare a further $15 million as

punitive damages. The district judge

granted a new trial on the ground that the

patent was not valid and the jury's

consideration of the faud issues was

contaminated by its reliance on the

supposed validity of the '748 patent.

The jury had also specifically found

that the complaint, filed on January 22,

1972, was timely-filled insofar as the

Statute of limitations for fraud (C.C.P.

§338(4)) was concerned.

That statute provides for a three year

period for fraud, or mistake but:

The cause of action in such case [is]

not deemed to have accrued until the

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discovery, by the aggrieved party, of

the facts constituting the fraud or

mistake.

In the Garter-Rare I, 650 F.2d at 981,

we stated the test that is applied in

California as "when a reasonably prudent

person would have had such knowledge as to

put him on injury." Hobart v. Hohart

Estate Co., 26 Cal.2d 412, 437, 159 P.2d

958 (1945). We also there held that

pretrial summary judgment was improper as

to the issue of the statute of limitations

for graud, as disputed questions of fact,

or facts susceptible of opposing inferences

are tried hy the jury and disputed

questions of fact existed in the case.

At the trial, the jury specifically

found that the complaint, filed on January

22, 1972, was timely insofar as the fraud

claims were concerned. The jury responded

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"No", to a special interrogatory asking:

Do you find that Larsen had such

information as would lead a reasonable

man to suspect that Munsingwear was

defrauding him more than three years

before the commencement of this legal

action?

On the motion for new trial, the

district judge held that this finding was

"contrary to the great weight of the

evidence" and granted the new trial.

Later, following the receipt of "new

evidence". offered in support of

Munsingwear's motion for new trial, he

granted Muynsingwear's post-trial motion

for summary judgment on the hasis that the

matter was barred by the applicable statute

of limitations.

Garter-Rare argues that the evidence is

not "new", and perhaps more important, it

argues that it is not material and is not

of a quality to permit the district judge

to overturn the jury's findings on the

issue of the statute of limitations. The

materiality contention is one that demands

close review.

Evidence that was in the record before

us in Garter-Bare I is summarized in that

opinion. At the trial the jury was aware

of that evidence, including evidence of

Larsen's communications with his attorney

Mr. Burum, in the final weeks of December

1967 and during January 1968, after

Munsingwear, by its letter of December 22,

1967, announced that it "did not wish to

review" the Agreement beyond the final date

(January 1, 1968) of the last extension of

the research and development period.

The jury also had before it testimony

from Mr. Larsen that during 1968, he had

consulted Mr. Burum and also his patent

attorney, Mr. Wallen. He also testified

that he had consulted with Mr. Graham

Sterling whom he described in his testimony

as being not only an attorney, but a member

of the Roard of Trustees of Occidental

College, where Larsen had several friends

on the faculty or in the administration.

He also testified that he had consulted two

other patent attorneys. One of them,

Robert Parker, was also a friend whom he

knew through Occidental College.

The jury was also aware that around

Decemher 22, 1978, Larsen obtained

knowledge of an advertsement in Women's

Wear Daily announcing Munsingwear's

intended release for merchandising of new

styles in its Vassarette line of girdles.

Several ads are in the record, many of them

showing a woman dressed in street clothing

the written portions of the ads stress that

the new garterless styles eliminated bulges

caused by garters and permit a smoother

contour in the woman's outer clothing. One

ad shows a woman dressed in a girdle, but

there is not way of determining from a

study of the ad whether it is, for

instance, a double-layer leg (which had

been merchandised in various forms before)

or a single-layer leg. Moreover, there was

nothing in the picture that would disclose

the type of friction element. The ads

speak of a "stocking locking" girdle with

"soft stretch knit" and speak of the legs

of the girdle locking the stocking leg in

Place. One speaks of "ripples of foam"

but, again, this is totally inadequate to

give notice of the technical nature of the

friction element.

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Larsen testified that he could not

determine if the advertised styles

encomapssed his ideas. His attorney

advised him that it would he necessary to

obtain a garment, and study it, in order to

determine if there were any patent

infringement. A specimen girdle was

obtained on January 22, 1969, within the

three-year period predating the filing of

the complaint.

Larsen's examination of the girdle led

him to conclude that his ideas had been

used, but he also noticed a label

indicating that the garment was protected

by a patent or patent pending. His inquiry

to Munsinqwear, asking for clarification,

produced a letter dated January 22, 1969,

from Mynsingwear's attorney stating that he

had “no knowledge of any Patents or Patent

Applications containing allowed claims that

would cover style No's. 888 and 988,"

" a a as ee =p

Larsen's Single layer patent application

was then before the Patent Office and

Larsen stated that he considered tnat he

was being invited to follow through on

theat application and this "make good" on

the warranty language in his Agreement with

Munsingwear, stating that patent protection

would be available on the inventions

covered by that Agreement.

In the spring of 1970 Larsen learned

for the first time that Connie Cuozzi,

hired by Munsingwear in May 1967, had

applied for a patent applicable to styles

882 and 988 in February 1969 (thus within

of the date of the letter advising of no

knowledge of any patent applications).

Garter-Rare's attorney argued to the jury

that there was no notice of any fradulent

activity fas opposed to conduct related to

hreach of contract or patent infringement)

prior to the time Larsen obtained knowledge

of the Cuozzi patyent or, at the very

earliest, when the specimen garment was

obtained for inspection. We must assume,

on this record, that the jury agreed and

this its agreement is reflected in its

finding that the fraud issues were not

barred by the reasonable person standard of

the statute of limitations.

The materiality of the “new evidence"

offered on Munsingwear's motion for new

trial is put squarely in issue. That

evidence consisted of the deposition

testimony of Dr. Richard Gilman of

occidental College, to whom Larsen had gone

in November 1967 seeking financial help in

anticipated litigation, presumably with

Munsingwear. It was Gilman who advised

Larsen to consult with Graham Sterling.

Gilman's testimony as to Larsen's

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conversations at that time were not

protected by the attorney-client privilege

that had precluded discovery of, or

testimony by, Steling himself.

On this record, we cannot accept

Munsingwear's position that the post-trial

evidence offered at to Gilman's

recollection was material so as to permit

summary judgment in its favor. Gilman's

testimony indicates that the only topics

considered at this time were Garter-Rare's

contract and patent rights. Indeed,

Munsingwear has conceded that Sterling gave

no advice or counsel as to fraud. Gilman

states only that Larsen came to him seeking

Financial assistance for litigation and

"patent rights and a patent situation was

the central issue". Gilman recommended

that Larsen see Sterling because of the

latter's association with Occidental

arty es dill

VB only 2 nab

ee RD WT IY Kae

iter Radian rau Wheelin ited

College and his experience in "corporate

law and contracts". Larsen stated at that

time that he believed Munsingwear was about

to manufacture or had manufactured a fabric

that “utilized his patent rights and

processes" and he helieved he was entitled

to damages or royalties "but he needed

clarification of some particulars relating

to that contract." Gilman understood that

Sterling's function would he to examine the

contract. After the meeting with with

Sterling, Larsen reported to Gilman.

Gilman testified he understood from him

conversation that Larsen helieved he had

"sound and solid patent protection and a

firm and envorceable contract." Gilman's

testimony in his deposition was that

Larsen's interest was in obtaining

"royalties or indemnity" against

Munsingwear; he spoke of Larsen's claim

ee ae eee the | nat neice

regarding his “patent rights and

royalties". The litigation that was

contemplated, as Gilman reported it, was

"for patent infringement."

It is Munsinqwear's position that a

reasonably prudent person would, of

necessity, he put on notice of the neeed

for injury into its fradulent activity, by

the very nature of the notice that

Garter-Rare had as to Munsingwear's breach

of contract and patent infringement,

Indeed, Munsinqwear attempts to support the

summary judqment in its favor, on the

ground that no other conclusion is possible

uSing the reasonably prudent person test of

C.C.P. §338(4), We have grave difficulty

with this assumption that notice of

contract hreach or notice of patent

infringement constitutes, at law, notice of

any fraud perpetrated hy the defendant. No

authority offered by Munsingwear supports

its contention that notice of the violation

of one's contract or patent rights triggers

a duty to inquire as to possible fraud

under the reasonable person notice

requirements of C.C.P. §338(4). We note,

in passing, that if Munsingwear's

contention were accepted, the notice

provisions of C.C.P. §338(4) would

supersede, and all but destroy, the

absolute four-year limitation period for

actions based on written contract (C.C.P.

§337) whenever it might appear that any

fraudlent motive or interest underlay the

breach,

[7,81 We are left with the same test

as we announced in Garter-Rare I, 650 F.2d

at 979, that disputed factual issues are

within the province of the trier of fact.

The jury under instructions that neither

part attacks, considered the question of

the statute of limitations for fraud, and

the evidence of Larsen's contacts with

attorneys, and his knowledge of the Women's

Wear Daily advertisement. The Gilman

deposition testimony is wholly consistent

with the position of Garter-Rare that there

was nothing sufficient to put a reasonably

prudent person on notice of fraud in the

weeks and months prior to January 29, 1969,

The Gilman pats tithes permitted, nor

compelled, summary judment for the

defendant.

The district covrt's order for new

trial as to the fraud claim must, however,

be affirmed. The very high damages awarded

for the fraud (1815 million compensatory

and $15 million punitive) have heen

acknowledged by all as an extremely liberal

award and we have no difficulty affirming

DA BRBS bo.

the grant of a new trial as to the damages.

The closer question is whether a new trial

is warranted on the issue of liability.

The scale tips in favor of the district

judge's evaluation of the interrelationship

of the various claims and the potential

impact on the fraud verdict of the jury's

assumption that the Larsen '948 patent was

valid. We therefore also affirm a new

trial as to liability on this claim.

Trade Secret Claims

In response to special interrogatories

put to them on the special verdict, the

jury found five areas in which Munsingwear

infringed trade secrets given in confidence

by Larsen. The five trade secrets found by

the jury were:

1. The preferred operating conditions

for the Larsen experimental machine

described in the letter by Knut

] Larsen to Richard Thistlethwaite of

December 13, 1965.

2. The information that plastiseal

HCl11l acquired from Carum Latex had

proven to work on the Spandex and

the experimental machine to produce

the samples already made.

The fact that an industrial-type

Bs. Seba i ae

glue gun can be made to act as a

plastiseal extruder in the process,

4, The source of the Fox Argo glue gun

which worked.

The removal of residual oil on the

52h NYRR. ashe sneha acne aes

Spandex was important to

maintaining adhesion of the

plastiseal.

The immediate issue is that of the

propriety of the judgment n.o.v. in favor

of the defendant as to these five instances

of alleged trade secret infringement. The

BS a

standard here, as before (see supra), is

that of substantial evidence to support the

jury's findings.

{91 California follows the Restatement

(First) of Torts, §757, in its definition

of a trade secret. Chicago Lock Co. v.

Fanberg, 676 F.2d 400, 494 (9th Circ.1982);

Forro Precision, Inc. v. International

Business Machines, 673 F.2d 1945, 1957 (9th

Circ.1982)3; Sinclair v. Aquarius Elec-

tronics, Inc., 42 Cal.App.3d 216, 116

Cal.Rptr. 654, 658 (1974),

Section 757 states:

One who discloses or uses another's

trade secret, without a privilege to do

so, is liable to to other if

(a) he discovered the secret by

improper means, or

(bh) his disclosure or use

constitutes a breach of

‘4

i NRT Ohl IAM EEA SS PAs BRE SP Tait tb ti yx

confidence resposed in him by

the other in disclosing the

secret to him, or...

The instructions that were given

without objection, and are not attacked on

appeal, reiterate the definition of Section

757 and of a Comment following it,

including specific statements as to the

necessity for, and conditions of, the

secrecy of the information. The jury was

appropriately instructed as to the secrecy

of certain information imparted to the

defendant hy the plaintiff prior to the

issuance of the plaintiff's patents. The

jury was also instructed,

The subject matter of a trade secret

must be secret. Whether such a degree

of secrecy existed in a particular case

is a question of fact for you, the

jury, to decide, It is not negated

a BD.

ee ee

. ees

eee

because one, by an expenditure of

effort, might have collected the same

information from sources available to

the public...

The district judge, in his opinion

granting judgment n.o.v. discusses the five

trade secrets found by the jury to he

finfringed and stresses that the plaintiff

had not proved the secrecy of the

information comprising the five trade

secrets. He states that matters of public

knowledge or general knowledge in industry

cannot be appropriated by one as his secret

returning repeatedly, in his opinion, to

Plaintiff's failure to demonstrate that the

information was not known generally in the

industry. Thus, the judgment n.o.v. is

Supported hy the district judge's view of

the evidence in the light of the assumed

burden of proof of the plaintiff to prove

ety ORME AS sls AES,

Mit

Pte he DAMS Ohl Belt

secrecy. With this we have difficulty

given this history of the parties working

in the research and development of Larsen's

device, the cancellation of their

Argreement by Munsingwear allegedly hecause

it had discontinued interest in the ideas*

and the product for lack of commercial

potential, and the almost immediate

development of the ideas and the product --

resulting in the merchandizing of the

girdles and the obtaining of the Cuozzi

patent which Munsingwear admits was in all

relevant respects the same as the Larsen

"748 patent which predated it.

f19] On this record we find

substantial evidence that Larsen did

possess valuable secrets which he disclosed

confidentially to Munsingwear pursuant to

their agreement, prior to the issuance of

his patents. On this record we find

substantial evidence that Munsingwear

mechandised a garment that was very closely

similar to the Larsen process. This being

so, the burden shifted to Munsingwear to

show that.

at the time, it could have arrived at

the process by independent invention,

inspection, or reverse engineering.

Henry Hope X-Ray Products, Inc. v. Marron

Carrel, 674 F.2d 1336, 1341 (99th Cir.

1982.1, quoting from greenbderg v. Croydon

Plastics Co., Inc., 378 F. Supp. 806, 815

(F.D. Pa. 1974).

This shift of burden is of importance

in this case. The district judge, in

support of his judgment n.o.v. noted that

there was "undisputed evidence" that the

defendant never used H-111-C plastisol and

chat if did not use the Fox Aro glue

extruder. The evidence in the record can

ee es pre ak et 8S is

seas: 2). DAE Te er ERE ee ey Oy Pete

be read as supporting a contrary

conclusion. There is substantial use of

Munsingwear's interest in, study of, and

work with, the trade secret information

found to be such by the jurors, giving the

jurors' verdicts the benefits of the

presuptions to which they are entitled on a

review of judment n.o.v. "Use" during the

contractual research and development period

may, on this record, he deemed to have

extended into Munsingwear's "use" of it in

the period that followed its notice that it

was ahandoning the project. Once again,

the interrelationship of one count with

another, a factor which the district judge

himself noted, makes it impossible as to

these trade secret claims, to disregard the

pleading and evidence from which the jurors

Might have found the existence of a

confidential relationship, a fradulent

motive in the timing and notice of

Munsingwear's "abandonment" of the project,

and the continued use of Larsen's

information and ideas in the so-called

Cuozzi process which Minsingwear actively

developed in the Post-"ahbandonment" period.

The state of the record is such that

judgment n.o.v. cannot be affirmed as to

the five trade secret claims. At the same

time, the alternative order for new trial

cannot be overturned on this record. Given

the interwoven nature of the claims and the

exceptionally hiqh damages, a new trial is

appropriate as to liability and as to

damages on the trade secret claims.

Appellee contends on appeal that

judgment n.o.v. might he sustained on the

ground that these trade secret claims are

barred by the two-year statute of

limitations for claims based on oral

contract (C.C.P. §339) or the three-year

statute of limitations for claims based on

oral contract (C.C.P. §339) or the

three-year statute of limitations for fraud

(C.C.P. § 338(4)). The district court

judge did not hase his judgment n.o.v. on

this ground and we, likewise, refrain from

doing so. Garter-Bare contends that that

gravamen of the trade secret claims is

fraud, and as we have noted, there are

heavy fraud overtones in the pleading and

in the evidence Garter-Rare sought to

produce. If there are fact issues to he

determined as to applicability of the

Statute of limitations to the trade secret

claims, inquiry may be made by the trier of

Fact, on retrial. Claims for tortious

interference with prospective business

advantages:

[ll] The jury awarded Garter-Bare

$500,000 on its claims that Munsingwear was

guility of unfair competition under

California tort law. This court has

recognized the California tort as requiring

the plaintiff to estahlish:

[lll The jury awarded Garter-Rare

$500,000 on its claims that Munsingwear was

quilty of unfair competition under

California tort law. This court has

recognized the California tort as requiring

the plaintiff to establish:

(1) the existence of a special

economic relationship between

appellants and third parties that

may economically benefit

appellants;

(2) knowledge by the appelles of this

relationship;

(3) intentional acts by the appellees

desiqned to disrupt the relationship;

(4) actual disruption of the

relationship; and

(5) damages to the appellants.

Rickards v. Canine Eye Registration

Foundation, Inc., 704 F.2d 1449, 1456 (th

Cir. 1983), citing RBuckaloo v. Johnson, 14

Cal.3d 815, 827, 537 P.2d 865, 872, 122

Cal.Rptr. 745, 752 (1975). It is also

essential that "some identifiable pecuniary

Or economic benefit must accrue to

appellees that formerly accrued to

appellants." Id. 704 F.2d at 1454,

[l2] The district judge granted summary

judgment holding the the invalidity of the

Larsen '745 patent, "plaintiff's potential

for economic benefit derived from the

licensing and sale of its product is

limited to competing in the marketplace

with a product whose concept lies wholly

within the public domain." He held that

the obtaining of the Cuozzi patent and its

later dedication to the public caused no

tortious interference with plaintiff's

DS a aT ee ee

prospective business. Moreover, he held

that there was no showing of damage as

there was no evidence to show that any

manufacturer declined to contract with

Garter-Rare because of the fear of a hattle

with Munsinqwear.

Garter-Rare responds that evidence of

Garter-Rare's efforts to delay the filing

of the Larsen patent application on the

Single-layer garment, added to its

announced abandonment of the research and

Aevelopment under its agreement with

Garter-Rare, added to its simultaneous

development of the so-called Cuozzi process

and the obtaining of a patent by its

employee Cuozzi, followed by its very

successful merchandising of the girdle

styles incorporating the so-called Cuozzi

process, lead to inevitable inferences of

damage to Garter-Bare's ability to enter

into any other profitable relationships for

the commercial exploitation of the Larsen

process. Garter-Rare points to the reality

of "one of the giants of the garment

industry" merchandising a garment under its

own patent which, in essential respects is

identical to the Larsen patent.

(Munsingwear at oral argument admitted that

the Cuozzi patent was anticipated by the

Larsen patent). Was this evidence such

that the jury might infer tortious

interference with Larsen's ability to

obtain any successful commercial advantages

with others in the garment industry?

Applying the traditional standard to a

judgement n.o.v., as to this issue, we must

come down on the side of the party against

whom the judgment was rendered. The

advantage flowing to one who causes

tortious unfair competition may be either

pecuniary or competitive. DeVoto v.

Pacific Fidelity Life Ins. Co., 618 F.2d

1340, 1348 (9th Cir. 1980). We cannot

overlook the evidence in this record of

Munsingwear's competitive advantage seen

particularly in the context of the specific

acts which Garter/Rare alleged, and the

jury obviously helieved, were fraudulent

acts.

While we reverse the judgment n.o.v. as

to this tort claim we are, once again,

persuaded that the alternative grant of a

new trial] on this issue should not he

disturbed. As noted earlier, the new trial

as to damages seems required. A new trial

as to liability presents a closer question,

but the district court's concern with the

possible impact of the assumed validity of

the '748 patent cannot be ignored. The

order for new trial is therefore affirmed.

Summary:

This case has consumed the energy and

emotion of the parties and of the court for

nearly fourteen years. The expense caused

by this protracted litigation is manifest.

It is a case that should he settled, and

settled promptly, giving realistic and

concrete attention to each party's

vulnerability and each party's strength.

it is not a time for either side to opt for

further gambling. It is a time for a

termination of the litigation through

realistic compromise and settlement.

In summary, we affirm the judgment

Nn.O.V. aS to the claims based on patent.

Solely on the ground of the bar of the

statute of limitations, we affirm the

judgment n.o.v. as to the contract claims.

We reverse summary judaqment as to the fraud

claims, but affirm the grant of a new trial

as to hoth liability and damages as to

those cliams., We reverse judgment n.o.v.

as to the claims based on tortious

interference with prospective business

advantage and on misappropriation of trade

secrets but affiirm the grant of a new

trial as to both liability and damages as

to those claims.!

Reverse in part and affirmed in part

and remanded for further proceedings.

FLY, Circuit Judge, dissenting in part:

I respectfully dissent from the portion

of the majority opinion that reverses the

District Court quickly and decisively

corrected. The record reveals that the

plaintiffs fashioned this complex action,

adorned with allegations of fraud, trade

secret misappropriation, patent

infringement and tortious interference,

from a simple $3000.90 contract dispute

1. There is) pending before us a motion to

strike all or portions of appellants'

opening »rief as excessive under our

rules. Much of the material contained in

the appendices is merely a reproduction

of material in the record but permission

of the court should have been obtained.

We grant the motion as to the material in

the various appendices. We deny the

motion as to the material contained in

the brief proper, i.e., contained in the

pages ending at page 72. over the

interpretation of the agreement and a claim

of patent infringment. The jury, their

collective vision blurred by a smokescreen

of nonexistent torts and plaintiffs' pleas

for sympathy, overlooked the crucial points

and awarded an outrageous and unsupportable

verdict in excess of $31,900,000.00, a sum

equal to nearly 80% of Munsingwear's 1979

total net worth. Unlike the jury's

verdict, the District Court's rulings on

Munsingwear's motions for judgment

notwithstanding the verdict ("judgment

n.O.v."), and post-trial motion for summary

judgment on plaintiffs' fraud claim, were

squarely based upon the applicable law and

the evidence and should be affirmed.

FRAUD CLAIM:

It is my view that the District Court

correctly held that the plaintiffs' claim

for fraud was barred by the applicable

Statute of limitations.

To determine this issue on summary

judgment requires undisputed material facts

which leave the inference that a

"reasonably prudent person" would have had

such knowledge as to put him on "inquiry"

more than three years prior to the filing

of the complaint. Garter-Rare Co. v.

aber:

eee

MunSingwear, Inc., 650 F.2d 975, 981 (9th

Cir. 1980) (Garter-Bare I). See also Von

Brimer v. Whirlpool Corp., 536 F.2d 838,

848-49 (9th Cir.1976)3 Turner v.

Lundquist, 377 F.2d 44, 46-48 (9th

Cir.1967). Such a finding requires the

emphasis of two general legal propositions.

First, we have held that section 338(4) of

the California Code of Civil Procedure

estahlishes an ohjective "reasonably

prudent person" standard for determining

when the statute of limitations begins to

run. A plaintiff's personal uncertainty

about, or mere failure to discover all the

facts of the existence of, a fraud claim is

immaterial. See Von Rrimer, 536 F.2d at

R48; Lundquist, 377 F.2d at 47-48. Second,

once “inquiry,” upon notice of sufficient

facts indicating possible fraud is

triggered, “a plaintiff will be deemed to

have knowledge of facts which would have

heen disclosed in a more extensive

investigation.” RBriskin v. Ernst & Ernst,

589 F.2d 1363, 1367 (9th Cir.1978);3 Von

Rrimer, 536 F.2d at 848,

From a review of the record upon which

the District Court granted Munsingwear's

post-trial motion for summary judgment, I

cannot escape the conclusion that a

reasonably prudent person would have had

knowledge of facts sufficient to make him

suspicious of fraud, thus putting him on

inquiry. This conclusion is supported by

the following material facts:

One, by mid-December 1968, Larsen

obtained a copy of a Munsingwear

publication containing a color photograph

of a woman wearing a 988 style girlde.

Upon inspection, Larsen become "concerned

that [he] had heen deceived and mislead

[sic] by ...Munsingwear." Unlike my

Brothers, I equate deception with fraud.

In fact, Black's Law Dictionary defines

"deceit" as "a fradulent or cheating

misrepresentation..." Rlack's Law

Dictionary 493 (rev. 4th ed. 1951)

(emphasis added).

Two, by mid-December 1968, Larsen

concluded that Munsingwear's 988 girdle was

a ‘violation of Garter-Rare's rights."

"From [its] appearance ... [23] deducted

[sic] that there must be something there,

where it refers to no garters, ... our

secret combination to foam ripples and

exclusive stay there, and then particularly

to foam ripples. We deducted [sic] that it

had to do with the plastisol and the

friction principle that had heen disclosed

to Munsingwear." (Upon learning these

facts, Larsen hegan to search for the

ook ieanaeein aan

a od Lenni Ries ia PARE ORE

PUG eT

ie oie oe

actual girdle displayed in the photograph.

Larsen also made inquirires to his lawyers,

Rurum and Wallen, and discussed with them

the possibility of suing Munsingwear.

Three, in late November 1968, Larsen

told Dr. Richard Gilman, President of

Occidental College, that Munsingwear was

"Dlanning to market very shortly a product

using [Larsen's] elastic fabric." Larsen

also contacted Gilman in an effort to have

Occidental College "participate in this

[Larsen's] legal expenditures, in turn for

certain payments [which] would he made to

the college upon success of his litigation"

aqainst Munsingwear.

On December 13, 1968, Larsen told

Gilman that: “The whole picture was ‘very

clear' to him, and that it was ‘most

important' to move right away to pursue

matters with or against Munsingwear for

NSE ETL EIRP ORR NAMIE EAE A BART AS OSD Ya

HE MT NN RRND RAG ARRAN NEA RNS NRO AGRI AE RE AT ANAND

royalties or indemnity, as the case might

be."

On December 23, 1968, Larsen's attorney

Rurum notified Munsingwear that his client

had learned that Munsingwear was about to

introduce a garterless girdle “which

appearedfed] to be a direct result of the

.-. /Agreement."

Four, by letter dated December 22,

1967, Munsingwear notified the plaintiffs

that Munsingwear "does not wish to renew

the Agreement..." Burum, by letters dated

January 2 and 17, 1968, twice acknowledged

that Munsingwear's letter-notice effected a

cancellation of the contract. Although

this event certainly did not cause the

three-year fraud statue of limitations to

hegin, it did effectively put Rurum and

Garter-Rare on notice that any future

employment of their designs by Munsingwear

ge TREN ae iia

would constitute substantial grounds for

suspecting fraud.

This cumulation of undisputed

pre-trial, trial, and post-trial evidence

leaves the inferences that a reasonably

prudent person" would have been on inquiry

as of December 1968 that Munsingwear was

marketing a device that plaintiffs helieved

was the "direct result" of the Agreement.

Plaintiffs admit that they "made an inquiry

on December 23, 1968, to the President of

Munsingwear ... ." This admission, in

addition to the above undisputed facts,

convinced the District Court that the

statutue of limitations began running

hefore the end of 1968. I am firmly

convinced that his conclusion was legally

correct.

The majority, in reaching its

conclusion, has "grave difficulty with

ihe potable Bes Pte Of Pie,

[the] assumption that notice of contract

breach or notice of patent infringement

constitutes, at law, notice of any fraud

perpetrated by the defendant." The

majority further asserts that "[nlo

authority offered by Munsinqwear supports

its contention that notice of the violation

of one's contract rights or patent rights

triggers a duty to inquire as to possible

fraud under the reasonable person notice

requirements as C.C.P.§ 338(4)." Such

reasoning misses the mark. It is knowledge

of facts, not precise legal theories, that

triqgers inquiry and the running of the

Statute. See Redolla v. Logan & Frazer, 52

Cal.App.3d 118, 130 & n. 10, 125 Cal.Rptr.

59, 68 & n. 10 (1975). The salient point

is that by mid-December 1968, a reasonably

Prudent person would have been on inquiry

notice of the essential facts comprising

as eens

BpkreeMhdeL BD 4 ihe een

isi sot Mabie see 8

eso CURE

plaintiffs' fraud claim. These facts, in

these circumstances, also constituted

notice of contract breach or notice of

patent infringment; however, the “dual

nature" of these facts should not, and does

not, invalidate the conclusion that a

reasonably prudent person would have had

knowledge to make him suspicious of fraud,

thus putting him on inquiry.

TRADF SECRET CLAIMS:

On appeal from the judgment n.o.v., the

key issue for our review is whether the

plaintiffs have presented substantial

evidence to support the jury's verdict.

See California Computer Products v.

International Rusiness Machines, 613 F.2d

727, 733-34 (9th Cir.1979).

The majority correctly points out that

Munsinqwear contends on appeal that the

judgment n.o.v. on this issue might he

sustained on the ground that the trade

secret claims are barred by the two-year

statute of limitations for claims based on

oral contract, Cal.Civ.Proc.Code §& 339

(West 1982), or the three-year statute of

limitations for fraud, id. at [ 338(4).

MunSingwear also made this argument to the

District Court, but the District Court did

| not hase its judgment n.o.v. on this

ground, Nonetheless, plaintiffs conceded

that the gravamen of the trade secret

7 claims is fraud, and as the majority notes,

| there are heavy fraud overtones in the

pleading and in the evidence plaintiffs

] sought to product. This heing so, I would

affirm the judgment n.90.v. on the ground

that the statute of limitations for fraud

bars the trade secret claims, for the

reasons I have above set forth in respect

to the fraud claim.

Even if one reaches the merits,

plaintiffs' trade secret claims must fail

because, as the District court correctly

concluded, there is no substantial evidence

that the five claimed trade secrets either

were legally protectable secrets or were

used by Munsingwear.

First plaintiffs failed to show that

the “preferred operating conditions" of

Larsen's machine were not matters of

general knoweldge or that it would have

been difficult to acquire this information

except through improper means. See Clark

v. Bunker, 453 F.2d 1906, 10N9-19 & n. 5

(9th Cir.1972). To the contrary, the

evidence establishes that, for many years

prior to any work by Larsen, plastisol or

latex had been applied to fabrics and

subsequently cured by passing them through

ovens. Indeed, a patent issued in 1959

dn tabuned bok whieddak dag Eanes sie

ee ew ee

anne St. ee Seba

(U.S. Patent No. 2,893,315) shows an

operation for applying elastomeric friction

elements in the form of latex dots to glove

fabric in a manner nearly identical in

operation to that of Laceek" machine. Nor

is there any substantial evidence that

Munsingwear used the knowledge of the

"oreferred operating conditions" suhsequent

to the termination of the research and

development period.

Second, as the District Court correctly

observed, H-111-C was obtained from Caram

Latex--"a commercial supplier of a variety

of products freely available in the

marketplace"--and Larsen did not select the

product at all. Instead, Larsen simply

described to Caram Latex a result he wished

to obtain, and Caram Latex selected the

specific product that it believed would

accomplish the task. As the Pistrict Court

Pree RR MN ANTS (arte Neen IeS

hen SESE

ROE Oe ee eed

correctly noted, "anyone making the same

request would have been supplied the same

product." The evidence also establishes

that plastisols were being applied to

fabrics, cured on fabrics in ovens, and

used in a variety of ways, including as

friction elements, long before Larsen did

any work in this area, let alone shared his

"knowledge" with Munsingwear. On this

record, the H-111-C information simply did

not rise to the level of a legally

"protectable trade secret." See id.

Third, plaintiffs failed to produce

evidence that either the fact that an

industrial-type glue gun could be made to

act as a plastisol extruder or that Fox Aro

Company was a source of such a gun were

secret, were not generally known, and would

have been information difficult to obtain

except by improper means. See id. The

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plastisol applying heads used with

Munsingwear's machine were designed and

manufactured by Munsingwear personnel.

And, as the District Court correctly

observed, there was no evidence that it was

not generally known in the industry that a

"glue-gun" could be made to act as an

extruder for materials including

plastisols. On the evidence produced at

trial, the District Court was correct in

concluding that there was no substantial

evidence to establish either that the

"glue-gun" information constituted a

"nrotectable trade secret" or that

Munsingwear used a Fox Aro glue extruder

subsequent to the research and development

period,

Fourth, plaintiffs simply did not

produce any evidence either that the

cleaning of residual oil from spandex was

not generally known in the industry or that

Munsingwear used this information.

Finally, in reversing the District

Court's judgment n.o.v., that majority

states that the burden was shifted to

Munsingwear to show that "at the time, it

could have arrived at the process by

independent invention, inspection, or

reverse engineering." In so reasoning, the

majority first concludes, without

supporting its conclusion, that the

plaintiffs have proved a crucial fact-the

fact that the information at issue was

indeed "secret." If I understand the law

correctly, the burden is on the plaintiffs

to show, without resort to presumptions of

any kind, that the claimed trade secrets

are “secret." See Frodge v. Untied States,

160 G.8.P.A.583, S87 & nw 3 (Ct .CL.1974).

The plaintiffs simply have not produced

substantial evidence to support such a

conclusion. The District Court was correct

in granting the judgment n.o.v. as to the

trade secret claims.

CLAIMS FOR TORTIOUS INTERFFRENCE WITH

PROSPECTIVF BUSINESS ADVANTAGE,

As with the trade secret claims, the

key issue for our review is whether there

is substantial evidence to support the

jury's verdict. See California Computer

Products, 613 F.2d at 733-34.

Plaintiffs allege that Munsinqwear's

acts lead to “inevitable inferences of

damage" to plaintiffs' ahility to enter

into profitahle relationships for the

commercial exploitation of the Larsen

process. In reversing the District Court's

judqment n.o.v., the majority relies on

evidence in the record of Munsingwear's

"competitive advantage" seen “in the

context" of allegedly fraudulent acts. As

to the evidence of Munsingwear's

competitive advantage, I have little

disagreement. Munsingwear is indeed “one

of the giants of the garment industry."

The point at which I must part company with

the majority hinges on the question it does

not ask insistently enough: Did the

plaintiffs present substantial evidence

that they were deprived by Munsingwear of

any prohable beneficial economic

relationship or that they sustained any

approximately caused damage? This question

must he answered in the negative. Viewing

the evidence of Munsingqwear's obvious

competitive advantage “in the context" of

alledgedly fraudulent acts does not mask

the fact that plaintiffs simply have not

produced substantial evidence of the

elements of their claim.

Plaintiffs have not produced a single

reasonably probable "profitable

relationship for the commercial

exploitation of the Larsen process" that

they could have entered into but for

Munsingwear's acts. Plaintiffs attempted

unsuccessfully to license the '748 patent

to 43 companies. Yet plaintiffs produced

no evidence that any of the 43 companies

they contacted ever refused a license due

to any act of Munsingwear. There is no

evidence that Munsingqwear did anything to

cause such universally negative responses

to plaintiffs' atrtempts to license the

'748 patent. The obtaining of the

anticipated Cuozzi patent was not enough.

There is no substantial evidence that the

mere issuance of the Cuozzi patent

"interfered" with plaintiffs’ licensing

opportunities in any way. Thus, there is

no substantial evidence that Munsingwear's

acts proximately caused any particularized

damage to plaintiffs. This being so, I

would affirm the District Court's judgment

n.O.V. as to this issue,

CONCLUSION:

As the majority aptly points out this

case has consumed the energy and emotion of

the parties and of the court for nearly

fourteen years. And, as the majority

states, the expense cassed hy this

protracted litigation is indeed manifest.

This Court now has the opportunity to bring

a just and proper end to the litigation.

Yet, the majority unwisely elects instead

to grant a new trial on three of

plaintiffs’ claims. I sincerely believe

that the plaintiffs have had a full and

fair opportunity to presecute their claims

and have failed in that attempt by not

presenting substantial evidence to support

those claims. The District Court's

judgments should be affirmed in all

respects.

UNITED STATFS COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARTFR-BAR COMPANY, )

an unincorporated

association a limited

partnership), and

KNUT L. BJORN LARSEN,

Plaintiffs and

Appellants,

Nos. 82-5279

vs. and 82-5439

MUNSINGWFAR INC., a

corporation, et al.,

Order Denying

Petition for

Rehearing

Defendants and

Appellees.

eee eee eee eae eee

Refore: CHAMBERS, ELY AND

WALLACE, Circuit Judges.

Appellants' petition for rehearing is

denied,

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARTER-RAR COMPANY, etc., )Nos. 82-5270

et al., ) 82-5439

)

Plaintiffs- )

Appeliants, )

yDC# CF

) 73-1911 Jwe

vs. )Central

\California

)

MUNSINGWEAR, INC.,

@te., Ot Slee ORDER

De fendants-Appellees.

The mandate, having issued in error by

the Clerk, is recalled pending disposition

of the appellees' petition for rehearing en

hance.

FOR THF COURT:

PHILLTP R,. WINRERRY

Clerk of Court

Cathy A. Catterson

Chief Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARTER-RBARF COMPANY,

an unincorporated

association a limited

partnership), and

KNUT L. RJORN LARSEN,

Plaintiffs and

Appellants,

Nos. 82-5270

vs. and 82-5439

MUNSINGWFAR INC., a

corporation, et al.,

Order Denying

Defendants and

Appellees.

Petition for

Rehearing

Refore: CHAMRERS, FLY AND ;

WALLACF, Circuit Judges.

Judges Chambers and Wallace have voted

to deny appellees petition for rehearing.

Judge Wallace has voted to reject the

suqgestion for rehearing en hanc and Judae

Chambers recommends such rejection. Judge

Fly has voted to grant the appellees'

petition for rehearing and recommends that

the suggestion for rehearing en banc he

adopted.

The full court has heen advised of the

suggestion for en hanc hearing, and no

judge of the court has requested a vote on

the suggestion for rehearing en hac. Fed.

R. App. P. 35(b).

The petition for rehearing is defined,

and the suggestion for a rehearing en banc

in rejected.

UNITED STATES DISTRICT COURT

CFNTRAL DISTRICT OF CALIFORNIA

GARTFR-RARE COMPANY, an

unincorporated association,

(a limited partnership),

and KNUT L. RBJORN-LARSEN

No.

CV73-1911-JwCc

Plaintiffs,

MEMORANDUM

AND ORDER

MUNSINGWRAR, INC.,

a corporation, et al.,

Nefendants.

eee wee eee”

The court has hefore it defendants'

motion for judqment non obstante veredicto

or, in the alternative, for a new trial.

Ry this motion defendants seek to set aside

a jury verdict aqainst them awarding

plaintiffs judgment in the sum of

$31,003,000.00,

The case involves a controversy

he tween the parties over the validity of

plaintiffs patent of a lady's panty girdle

and certain conduct on the part of the

defendants which the plaintiffs contend

violate the provisions of a written

contract and constitute a breach of a

fiduciary relationships.

Refore discussing the merits of the

case, a general statement of the facts is

necessary.

FACTS

In April of 1963, the plaintiff Larsen

conceived of certain improvements in

women's girdle structures in which the

conventional qarter fasteners were replaced

hy a double cuff extension on each leg of

the girdle, the inner surfaces of which

were covered with an elastomeric material

which gave frictiona] support to a woman's

hose when positioned over the inner flapand

under the outer flap. Larsen applied for a

patent on his double cuff girdle on

December 23, 1963 pursuant to which a

Letters Patent No. 3,253,599 was issued on

May 31, 19664,

In April, 1965, the plaintiffs

contacted the defendant Munsinqwear with

the intention of engaging in some

arrangement for the commercial develop of

Larsen's idea. As a result, the parties

entered into an agreement on July 9, 1965,

which, although extended several times, as

amended was to expire according to its

terms December 31, 1968.

In general, the agreement provided that

a period of research and development would

he conducted in order that Munsinqwear

might determine whether the girdle had a

commercial value. If Munsingwear

determined that it did, it would have an

exciusive license to sell the garment for a

specified period of time on payment of a 5%

royalty, and that the parties would

thereafter own the patent and share equally

in any licensing revenue. Munsinqwear

further agreed to pay Larsen the sum of

$1,900.00 a month as an advance against

royalties subject to Munsingwear's right to

terminate the aqreement by giving three

months notice.

Ry letter dated Necembe. 22, 1967,

Munsinqwear gave notice of its intention

not to extend the July, 1965 aqreement as

amended and refused to make any further

payments of $1,900.90 to Larsen upon the

theory that the agreement had expired

according to its own terms and that no

three months notice was required.

The plaintiff Larsen developed a

further concept of this girdle structure

which has been referred to throughout this

litigation as a “single layer girdle."

This concept consists of a single cuff of

stretchable elastic fabric lined with

elastomeric elements which overlie the top

of the stocking, holding it in place by

friction and pressure against the leg of

the wearer. On January 12, 1967, Larsen

applied for a patent on this “panty girdle

ano stocking support" for which he received

a patent on November 18, 1969, patent No,

3,478,748,

Although Larsen subsequently obtained

another patent on “a method of formir 4

friction protrusions on elastic, open mesh

garment fabric," it is the patent 3,478,748

which is the subject of this action.

In May, 1967, Munsingwear employed

Concetta L. Cuozzi in their design

department, who designed and ultimately

patented a “single layer girdle," Patent

No. 3,496,944, This patent was sub-

sequently dedicated to the public domain.

Since no pretrial conference order was

ever signed, no precise statement of the

many issues raised hy the pleadings appears

in the record. However, the parties

throughout the trial and in their moving

papers now before the court have dealt

almost exclusively with the following six

issues:

Re The contractual issues involving

the construction of the agreement of July

9, 1965, as amended;

2. The validity of plaintiffs' '748

patent;

se Plaintiffs' trade secrets, and

their alleged misappropriation;

4. Defendants' conduct which

plaintiffs allege to have been fraudulent,

and whether plaintiffs’ claim is barred hy

the statute of limitations;

6 Defendants' alleged unfair

competition;

6. The appropriate measure of

damages.

The jury returned a special form of

verdict, which in general favored the

plaintiffs and awarded hoth compensatory

and punitive damages. Further details of

the verdicts will appear in the discussion

of the issues which follows.

RRFACH OF CONTRACT

The first four counts in the complaint

are hased upon hreach of contract and, in

particular, the agreement of July 9, 1965,

as amended. In count one plaintiffs claim

the letter of December 22, 1967 was not

termination notice as required, so that the

agreement to pay $1,900.00 a month advance

royalty was never terminated. In count two

plaintiffs contend that under the agreement

they are entitled to 5% royalty on

Munsingwear sales hased upon the continuing

existence of the agreement. In the third

cause of action plaintiffs claim $1,000.00

a month for each of the months of January,

February, and March, 1968, on the alternate

theory that the aqreement was effectually

terminated by the letter dated December 22,

19647. In count four plaintiffs contend

that, assuming the contract is still in

effect, they are entitled to a one-half

interest in the Cuozzi patent.

In special interrogatories furnished

the jury, it found that the partiies did

not mutually intend the research and

development period to be extended beyond

January 1, 1968, and that although

Garter-Rare accepted Munsingwear's letter

of Decemher 22, 1967 as a termination of

the agreement to pay the $1,900.00 monthly

royalties, they did not waive their claim

to three months payments which continued to

accrue. The net result was that the jury

awarded the plaintiffs the sum of $3,000.00

as unpaid royalties.

This portion of the verdict cannot he

sustained for, as a matter of law, it is

barred by the statute of limitations. Cal.

Civ. Proc. § 337 (1) provides that an

action on a written contract must he

brought within four years of the time of

its accrual. The cause of action accrues

when there is a remedy available. Rarlow

v. City Council of Inglewood, 32 CA. 2d

688, 197 P, 2d 721 (1948).

According to the undisputed evidence,

on January 2, 1968, (Fxhibit D 101), and

again on January 17, 1968 (Fxhibit D 102),

Mr. Peter F. RBurum, attorney for

Garter-Rare, acknowledged Munsingwear's

cancellation of the aqreement of July 9,

1965, as amended, and asserted that a

payment of Three Thousand Dollars

($3,000.00) royalty was due from

Munsinqwear to Garter-Rare for the months

of January, February and March of 1948, = On

January 18, 1968 (Exhibit PD 103), Mr. Alden

M. Hanson, the Secretary-Treasurer of

defendant, Munsingwear, notified Mr. Burum

that Munsinqwear did not helieve any

further royalty payments were due and that

these royalty payments would not be paid.

It woulc’ appear, therefore, that

plaintiffs' cause of action for breach of

contract as it relates to the royalties,

accrued at least as early as January 18,

1968, Since this action was not filed

until January 22, 1972, it was not brought

within the period allowed by the statute.

As to this issue, the verdict must he set

aside and defendants are entitled to

judgment thereon,

VALIDITY OF PATENT NO, 3,478,748

I shall next consider the issue of

validity of the patent, since resolution of

this issue will largely affect the

remaining issues in the case.

The question here was whether Larsen's

invention was obvious, for nonobviousness

is an essential element of patentability.

The jury in its special verdict found

the patent valid and awarded plaintiffs a

royalty of 7%, presumably on all infringing

articles sold, However, the question of

whether or not an invention is obvious is a

conclusion of law for the court to decide,

Sakraida v. Aq Pro, Inc., 425 U.S. 273,280

(1976) (the ultimate question of patent

validity is a question of law); Graham v.

John Deere Co., 383 U.S. 1, 17 (1966)

(same); see also Rergman V. Aluminum Lock

Shingle Corp. of America, 251 F.2d 801, 809

(9th Cir. 1957) (Pope, J. concurring).

In Graham v. John Deere Co., supra, the

Supreme Court laid down a three-part

factual analysis to use in the

decermination of the ohviousness of an

invention under section 103:

Under § 1093, the scope and content of

the prior art are to be determined;

differences between the prior art and

the claims at issue are to he

ascertained; and the level of ordinary

skill in the pertinent art resolved,

Aqainst this hackqround, the

7 eee i "rs

obviousness or nonobviousness of

the subject matter is determined,

363 0.8. at 17.

To begin with, it would appear that the

plaintiffs have the burden of proving

nonoviousness. Since the most pertinent

prior art is the French Patent Anthon

1,297,197 and the United States Patent

Kleindienst 1,851,967, neither of which was

hefore the patent examiner, the presumption

of validity is overcome. Namirowski v.

Nahisco, Inc., 421 F. Supp. 349 (N.D. I1l.

1976), Aff'd S67 F.2d 392 (7th Cir.), cert.

denied, 435 U.S. 971 (1977).

The Anthon patent shows a panty girdle

similar in all respects to that claimed hy

Larsen in his patent, except that it claims

that the elastomeric friction elements are

“attached," whereas, the Larsen claim

refers to the elastomeric elements

"adhering." In Anthon the friction

elements consisted of elastic threads or

ribbions sewn onto the cuff; whereas,

Larsen applied latex directly to the

material where during the curing process it

became imbedded in it. Plaintiffs' patent

expert admitted that if the word "adhering"

in the Larsen's claim one were changed to

read "attached" every element of the claim

would be found in the Anthon reference.

Plaintiffs’ arqument for patentability of

the '748 patent is directed not to a new

girdle structure, hut rather to the manner

in which the elastomeric friction elements

are attached to a fahric. The evidence

shows without conflict that long before any

work was done by Mr. Larsen, various

plastisols, latexes, neoprenes, and other

materials would be deposited on fabrics to

produce elastomeric friction elements. The

Kleindienst patent teaches the application

of latex to a faric to produce elastomeric

friction elements. United States Reissue

Patent Wells, et al., 22,167 (Fxhibit 141),

discloses forming friction elements on the

fabric of a glove in such a manner that the

portions of the fabric hecome imbedded in

the friction elements. The '748 patent is

directed to a combination of old elements

which is patentable only when it produces

an unusual and surprising result. Great

Atlantic & pacific Tea Co. v. Supermarket

Fquip. Corp., 349 U.S. 147, 152 (1950). As

plaintiffs' own expert witness admitted, if

someone in 1962 had taken a latex and

prepared as shown in the Kleindienst patent

and substituted it for the rubber ribbon

set forth in the Anthon patent, the result-

ing structure would have all the elements

of both claims 1 and 6 of the '748 patent.

Considering the factual hackground of

the Larsen patent in light of the teachings

of Graham v. John Deere Co., I conclude

that the invention is obvious, for in its

creation Larsen has not produced anything

heyond the ordinary skill in the art.

Consequently, I hold that claims 1 and 6 of

the '748 patent are invalid and the

findings of the jury to the contrary must

be set aside and judqment awarded to the

defendants on this issue.

TRADE SFCRETS

We next move to a consideration of the

trade secrets. Of the many trade secrets

claimed by the plaintiffs, the jury, by

special verdict found the following to be

trade secrets: (1) the preferred operating

conditions for the Larsen experimental

machine described in the letter by Larsen

to Richard Thistlethwaite of December 31,

1965; (2) the information that plastisol

H-11-C acquired from Caram Latex had proven

to work on the spandex, and the

experimental machine to produce the samples

already made; (3) the fact that an

industrial type glue gun can he made to act

as a plastisol extruder in the process; (4)

the source of the Fox Aro gun which worked;

and (5) that the removal of residual oil on

the spandex was important to maintain

adhesion of the plastisol. The jury found

that these trade secrets were misappro-

priated and awarded judgment in favor of

the plaintiffs in the sum of $500,000.00,

The jury's verdict on this aspect of

the case cannot be supported by the

evidence. California follows section 757

of the First Restatement of Torts which

requires the plaintiff to establish the

following factual elements: (1) that he is

the owner of a trade secret, (2) that

defendant has discovered the trade secret

by improper means or that his use of the

trade secret constitutes a breach of

confidence reposed in him by the plaintiff

in disclosing the trade secret, (3) that

defendant has used the trade secret, and

(4) that plaintiff has heen damaged. See

Walker v. University Rooks, Inc., 692 F.2d

S859 (Sth Cir. 1979).

In the first place, a trade secret must

be secret. Matters of puhlic knowledge or

qeneral knowledge in industry cannot be

appropriated by one as his secret. A

substantia] element of secrecy must exist

so that except by the use of improper means

there would be difficulty in acquiring the

information. Id. at 865.

As to the preferred operating

conditions of the Larsen machine, there was

no showing that these were not matters of

general knowledge in the industry or that

it would he difficult to acquire this

information except through improper means,

To the contrary, the testimony indicated

that the industry had for many years, prior

to any work done by Mr. Larsen, applied

plastisols by passing them through an oven.

Rut more importantly, there was not

evidence whatever to indicate that

Munsiningwear had ever used the machine or

its knowledge of the operating

characteristics to produce any garment

subsequent to the termination of the

research and development program. In fact,

the uncontradicted evidence is to the

contrary.

As to the information that Caram

LatexH-11-C plastisol would work, the

evidence showed that Caram Latex is a

commercial supplier of a variety of

products freely available in the

marketplace. Mr. Larsen indicated that he

was not sure what it was but he thought it

was polyvinylchloride hecause that was the

term that Caram Latex used when they sent

it to him, Furthermore, he did not select

the product, he merely specified a result

he wished to obtain, and Caram Latex

selected the product which they felt would

do the job. There is no indication but

anyone making the same request would have

been supplied the same product. Further-

more, the undisputed evidence is that the

defendants never used H-11-C plastisol.

As for Fox Aro as a source of an

industrial type glue gun which could he

used as a plastisol extruder, here again,

there is an absence of evidence that such

information was in any way secret and not

generally known to the industry. The

uncontradicted proof is that Munsingwear

desiqned and manufactured its own extruder

and did not use the Fox Aro product.

As to the residual oil removal to

maintain adhesion of the plastisol, the

record contains no evidence that this

knowledge was not generally known in the

industry and, furthermore, there is no

evidence that Munsingwear ever used this

information.

I hold, therefore, that the special

verdicts of the jury holding these to he

trade secrets must he set aside on the

ground that such findings are wholly

without evidentiary support, and that the

defendants are entitled to judgment on the

issue of trade secrets.

FRAUD

Plaintiffs' claim of fraud was

predicated to a large extent upon the

validity of their patent and the

misappropriation of their trade secrets.

Having found in favor of the plaintiffs on

these two issues, the jurors no doubt

relied to some extent on these findings in

reaching their conclusion with respect to

the issue of fraud. Although there was

some evidence upon which the jury could

make such a finding separate and apart from

any considerations of patent validity of

trade secret misappropriation, it is

impossible to tell the extent to which, if

at all, the jury was influenced by the

belief that the patent was valid and the

trade secrets were misappropriated. Under

these circumstances, it would appear that a

new trial is necessary in order that a jury

may determine the issues of fraud in its

proper setting.

Furthermore, the defendants have raised

the statute of limitations as a bar to the

prosecution of this claim, In that respect

the jury made a specific finding that

Larsen has not received such information as

would lead a reasonable person to suspect

that Munsingwear was defrauding him at any

time more than three years hefore the

commencement of this action. It is

undisputed, however, that on or about

December 16, 1968, Garter-Rare through its

general partner Larsen came into possession

of a publication by the Hollywood

Vassarette Division of Munsingwear which

contained a color photograph of a woman

wearing a Hollywood Vassarette 988 panty

girdle. Such publication was a twelve-page

brochure identified as “Supplement to

Women's Wear Daily Advertisement, dateS

November 7, 1968 (Fxhibit D 112).

Upon inspection of this photograph,

Larsen became concerned that Munsingqwear

was improperly or unjustly marketing

Garter-Rare girdle structures without

compensation to Garter-Rare.

Prior to December 23, 1968, Larsen had

Aiscussed the Munsingwear 988 girdle as

disclosed in the Hollywood Vassarette

brochure with two Garter-Rare attorneys,

Mr. Rurum and Mrs. Wallen. On December 23,

1968, Mr. Rurum wrote to Mr. A Byron Reed,

president of Munsingwear, Inc., and

indicated that Garter-Rare felt that

Munsingwear's “stocking locking" girdle

styles No. 888 and 988 were a direct result

100

of the agreement which had existed between

Garter-Bare and Munsingwear (Exhibit D

133).

In the face of this undisputed

evidence, the jury's findings on the

statute of limitation issue is contrary to

the great weight of evidence.*/ Thus, for

this additional reason a new trial should

be granted on the issue of fraud.

The defendants have added an additional

qround for a new trial--the discovery of

new evidence relevant to the issue which

was not available to them at the time of

the trial. If this evidence is true, it

further supports defendants' contention

that the fraud count is harred hy the

statute of limitations.

UNFAIR COMPRTITION

The jury awarded plaintiffs $500,000.00

in compensatory damages for interference

101

with Garter-Rare's prospective business

advantage. This advantage was the

opportunity to license its product to the

garment industry. Plaintiffs contend they

were prevented from prospective advantage

by the defendants patenting their own

girdle, which made it impossible for

plaintiffs to license their own patent for

a Similar girdle.

In order to establish such

interference, plaintiffs must prove: first,

a potential economic relationship

containing the probability of future

economic relationship containing the

probability of future econmic henefits to

it; and second, proximately caused damages.

See Ruckaloo v. Johnson, 14 Cal. 3d 815,

827, 122 Cah. Sptr. 745 (1975).

Having held that the plaintiffs’ patent

is invalid, plaintiffs' potential for

102

econmic benefic derived from the licensing

and sale of its product is limited to

competing in the marketplace with a product

whose concept lies wholly within the public

domain. The defendants, by obtaining the

CuozzZi patent and later dedicating it to

the public, caused no tortious interference

with plaintiffs’ prospective business,

Plaintiffs and defendants are simply both

competitors, free to engage in legitimate

competitive exercise.

Furthermore, Garter-Rare could show no

damage. It could not name any specific

licensees and there was no evidence to show

that any manufacturer declined to contract

with the plaintiffs hecause of the fear of

legal battle with the defendants. In my

view, the plaintiffs have failed to

establish their claim of unfair

competition, and the jury's verdict as to

193

this issue must he set aside and a judgment

entered for the defendants.

In the event of a reversal of this

decision, it would appear that an order

granting a new trial would be appropriate

in view of the fact that the jury's finding

of patent validity and misappropriation of

trade secrets undoubtedly was a major

factor in the jury's award. This court's

ruling to the contrary on hoth issues would

undouhtedly hring about a much different

result in the event of a new trial.

DAMAGES

In my judgment the award of damages in

this case as to all counts is excessive.

No doubt the jury was influenced to a great

extent by the belief Unat the Larsen patent

was valid and was infringed and that

Munsingwear had misappropriated Larsen's

trade secrets. Furthermore, an assessment

194

= ie

£i

=“

toca « ave r 7

o =“

. j

‘

ie |

of the damages on the issue of fraud should

wait a new trial in order to determine

whether that count is harred by the statute

of limitations. The award of punitive

damages in the sum of $15,900,909,09 is

also excessive and was no doubt hased upon

the same erroneous assumptions upon which

the compensatory award was determined.

As a result of the foregoing,

IT IS HFRERY ORDFRED that a judgment

non obstante veredicto be awarded the

defendants on the issue of the breach of

contact, the issue of trade secrets, and on

the issue of patent validity, and in the

event of a reversal by the Circuit Court of

Appeals of this court's decision on any of

these issue, the court grants a new trial

on such issues on the ground that the

jury's verdicts are contrary to the great

weight of the evidence, and the verdict is

excessive,

105

IT IS FURTHER ORDERED that a new trial

be granted on the issue of unfair

competition.

DPATED: December 15, 1981.

JFSSF W. CIRTIS

United States District Judge

196

FOOTNOTE

“y

The California three-year statute of

limitations for fraud, (C.C.P § 338 (4)),

begins to run “when a reasonably prudent

person would have had such knowledge as to

put him on inquiry. .. ." Garter-Rare Co.

v. Munsingwear, Inc., 622 F.2d 416, 423

(9th Cir. 1980. Once a party is aware of

sufficient facts to he put on inquiry, he

is charged with "the knowledge of facts

which could have heen discovered by...

an investigation." Redolla v. Logan &

Frazer, 52 Ca. App.3d 118, 131 (1975).

107

UNITED STATES DISTRICT COURT

CFNTRAL DISTRICT OF CALIFORNIA

GARTFR=-RARFE COMPANY, an )

unincorporated association

(a limited partnership)

and KNUT L. RJORN-LARSEN,

Plaintiffs, No. CV

73-1911-Jwc

ORDER

AMENDING

MEMORANDUM

AND ORDER

DATED

DECEMBER 15,

1981

MUNSINGWRAR, INC., a

corporation,

Defendant.

ee ee ee ee ee

Plaintiffs having moved pursuant to

Title 28 U.S.C.A. § 1292(b) to amend this

court's Memorandum and Order dated December

15, 1981 and entered December 17, 1981 to

include therein certain statements required

by 28 U.S.C.A. § 1292(b) and F.R.A.P. Rule

5(a); and

Plaintiffs having moved pursuant to

F.R.C.P. Rule 59(e) to amend said

108

Memorandum and Order to correct certain

errors therein; and

Defendant having moved pursuant to

F.R.C.P,. Rule 60(a) to correct clerical

errors in said Memorandum and Order; and

The court having heard the arguments of

counsel, considered the briefs filed

herein, and being fully advised, it is

ORDFRED, that the Memorandum and Order

dated December 15, 1981 and entered

December 17, 1981] is hereby amended by

deleting the last two paragraphs thereof

and inserting in place thereof the

following three paragraphs:

"IT IS HFRERY ORDFRED that a

judgment non obstante veredicto he

awarded the defendant on the issue of

the breach of contract, the issue of

trade secrets, the issue of unfair

109

competition, and on the issue of patent

validity, and in the event of a

reversal by the Circuit Court of

Appeals of this court's decision on any

of these issues, the court grants a new

trial on such issues on the ground that

the jury's verdicts are contary to the

great weight of the evidence, and the

verdict is excessive.

"IT IS FURTHER ORDERED that a new

trial be granted on the issue of fraud,

and further that defendant's Rule 60(a)

motion be granted.

This order involves a controlling

question of law as to which there is

substantial ground for difference of

opinion, and an immediate appeal from

this order may materially advance the

ultimate termination of this

litigation.”

119

DATED: February 12, 1982

JESSE W. CURTIS

United States District Judge

111

FEL aaa. 1

Php each ao aa

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARTFER-RARF COMPANY ET AL CASF NUMRER

PLATINTIFF(S) CV 73-1911-J3wc

MUNSINGWRAR, INC, NOTICE OF ENTRY

DEFENDANT (S )

TO THE AROVF NAMED PARTIES TO THEIR

ATTORNFY(S) OF RECORD:

You are hereby notified that ORDER

AMENDING MFMORANDUM & ORDFR Dated 12-15-81

in the ahove entitled case was entered in

the docket on 2-16-82.

You are also notified that if this case

was tried and you introduced exhibits into

evidence, they must he claimed at this

office after the expiration of thirty days

from the receipt of this notice. (After

112

seq

’

—-

Se tee

a >

= Se

ere ler al

Sixty days in cases in which the United

States, its officers or agencies were

parties). Unless they are claimed within

thirty days after the expiration of the

ahove period, they will be destroyed

pursuant to Local Rule 20(a). If an appeal

is taken they will, of course, he held

until the Appellate Court finally

determines the matter. Exhihits which are

attached to a pleading will not he

destroyed but will remain as a permanent

record in the case file.

113

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.