Opposition Brief — Technograph, Inc. v. General Motors Corp.

Office-Supreme Court, US,

1s FILED

No. 84-1795 4U8 IF Igas5

“ALEXANDER L. STEVES,

IN THE CLERK

Supreme Court of the United States

OcTOBER TERM, 1984

TECHNOGRAPH, INC.,

Petitioner,

v.

GENERAL Motors CORPORATION,

Respondent.

GENERAL MOTORS’ BRIEF IN OPPOSITION TO

TECHNOGRAPH’S PETITION FOR CERTIORARI

ARTHUR G. CONNOLLY

ARTHUR G. CONNOLLY, JR.*

CoNNOLLY, Bove, Lopar AnD Hutz

1220 Market Building

Post Office Box 2207

Wilmington, DE 19899

(302) 658-9141

Attorneys for General Motors

Corporation

Of Counsel:

Wuumum A. ScHUETZ, Esq.

General Motors Corporation

Detroit MI 48232

GerorcE E. Frost, Esq.

BARNES, KISSELLE, RAIscH,

CHOATE, WHITTEMORE AND HULBERT

Birmingham, MI 48011

*Counsel of Record |

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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CONTENTS

Page

rr i Se bk vcwwscevendcasnecam li

I I i a os a eb ke ww eas 1

COUNTERSTATEMENT OF THE CASE ..........cccccccees 2

os ig 5g ki kkk hobo dnd daceaw 8

I. Question PresenTED No. 1, THE Damages AMOUNT

oF THE 1981 FuvaL JUDGMENT ...............00: 9

II. Qurstion PresenteD No. 2, InreEREst CoMPouND- -

me Unems Gio 2) UBC. 1961 2 wc ciccccccnccass 13

Cee ee 17

ii

TABLE OF AUTHORITIES

Page

Brooklyn Bank v. O’Neil, 324 U.S. 697, 715 (1945) ... 15

Cherokee Nation v. United States, 170 U.S. 476, 490

(EPMRD «4 Svaxcsinevoagne a aeeaee eee 15

Dorey v. Dorey, 609 F(2d) 1128 (5th Cir., 1980) ..... 16

Federal Trade Commission v. Minneapolis-Honeywell,

ee ie Be CAND 6k v vk cxannsnnscokeios sees 10

Hathorn v. Lovorn, 457 U.S. 255, 262 (1982) ......... 11

Hughes Tool Co. v. Trans World Airlines, Inc., 409

Tit CRO OOD. 80k eds kod eee 11

National Bank v. Mechanics National Bank, 94 U.S. 487

PRI Dp n:4 ka ng ace king ocncn gs nn es 16

Pack and Process, Inc. v. Nabisco, Inc., C.A. No. 78-

285, Slip Op. at 6-7 (D.Del., 1981) .............. 15

Papendick v. Robert Bosch, 562-CA-1977, slip op. (Del.

Super. Ct., Aug. 4, 1981), aff’d No. 238, 1981 (Del.,

ENDER RA, SOO) hikes eee ee oe 15

Rude v. Wescott, 130 U.S. 152, 167 (1889) .......... 4

Stewart v. Barnes, 153 U.S. 465 (1893) ............. 16

Stickle v. Heublein, Inc., 716 F.2d 1550, 1561 (CAFC,

ROOEE. Shik sces doxcswcakeuces bie Gace 12

T'oledo Scale Co. v. Computing Scale Co., 261 U.S. 399

(ROOFED Ads bak cds eke Okeke sae eee 11

IN THE

Supreme Court of the United States

OctToserR TERM, 1984

No. 84-1795

TECHNOGRAPH, INC.,

Petitioner,

, -

GENERAL Morors CoRPORATION,

Respondent.

GENERAL MOTORS’ BRIEF IN OPPOSITION TO

TECHNOGRAPH’S PETITION FOR CERTIORARI

STATUTES INVOLVED

35 U.S.C. 284

Damages

Upon finding for the claimant the court shall award

the claimant damages adequate to compensate for the

infringement but in no event less than a reasonable

royalty for the use made of the invention by the in-

fringer, together with interest and costs as fixed by

the court.

28 USC 1961 Prior to Amendment Effective October 1, 1982

“Interest shall be allowed on any money judgment

in a civil ease recovered in a district court. * * * Such

2

interest shall be calculated from the date of entry of

the judgment, at the rate allowed by State law.”’

(June 15, 1948, c. 646, 62 Stat. 957)

28 USC 1961 After Amendment Effective October 1, 1982

(a) Interest shall be allowed on any money judg-

ment in a civil case recovered in a district court. * * *

Such interest shall be calculated from the date of entry

of the judgment, at a rate equal to the coupon issue

yiaid equivalent (as determined by the Secretary of

the Treasury) of the average accepted auction price

for the last auction of fifty-two week United States

Treasury bills settled immediately prior to the date of

the judgment. * * *

(b) Interest shall be computed daily to the date of

payment except as provided in section 2516(b) of title

28, United States Code * * *, and shall be compounded

annually.

* * *

(as amended April 1, 1982, Pub. L. 97-164, Title ITT,

See. 302(a), 96 Stat. 55)

COUNTERSTATEMENT OF THE CASE

This case involves a patent to a process of cold

forming steel products. The complaint was filed in

1956. On June 29, 1962, the District Court in Chicago

found the patent invalid and entered judgment for

Respondent General Motors Corp. (‘‘GM”’’). 248a.* The

Court of Appeals for the Seventh Circuit reversed the

1 Citations are to the pages in the .s;wendix to the Petition

unless otherwise indicated.

3

finding of invalidity and remanded the case on July 12,

1963 for trial of the infringement issue. Idem., cert.

den. 375 U.S. 971 (1964). The case was then transferred

on Petitioner’s motion to the District of Delaware.

On January 13, 1971, after trial, that court ruled that

there had been no infringement. Idem. The Court of

Appeals for the Third Cireuit reversed and entered

its judgment of infringement on September 16, 1972.

Idem., cert. den. 411 U.S. 973 (1973).

The case was then assigned to a Special Master for

an accounting of damages. 243a. Almost two years

before trial an issue arose on discovery of whether

‘‘savings and gains’’ of cold forming parts as com-

pared to machining or forging could form a basis for

determining reasonable royalties. The Special Master

then warned Petitioner of the risk of exclusive reli-

ance on such ‘‘savings and gains.’’ His confirmation

of the October 1976 pretrial conference states that ‘‘. ..

I cautioned plaintiffs of the risk of putting all their

eggs in a single theory-of-damages basket. .. .”

The subsequent accounting trial consumed 53 davs and

involved extensive proofs on 61 separate accused proc-

esses. The report of the special master, dated February

7, 1980, occupies 127 printed pages. 50a to 187a. Taking

up the accused processes one by one, he found as the

fact that many did not infringe and that some did in-

fringe. He entered fact findings rejecting Petitioner’s

contention that non-bumpers could not have been cold

formed without the patent process. 108a-1llla. He spe-

cifically found with respect to non-bumper parts that

‘‘the Henricks (patent) process had relatively slight

importance to defendant’’ 132a. Further, ‘‘plaintiffs

have offered no evidence on which a royalty might be

4

reasonably based.’’ 137a. Citing settled law, including

this Court’s holding in Rude v. Wescott, 130 U.S. 152,

167, he held that proof must “‘be based upon creditable

data, not speculation, conjecture or unwarranted as-

sumptions’’. 136a.

The District Court carefully considered Petitioner’s

exceptions to the report of the Special Master. His

opinion, dated August 22, 1980, confirmed the Master’s

report on non-bumper infringing processes because—

‘*Devex’s [Petitioner’s predecessor] proposed basis

for comparison then is unacceptable. Devex failed

both to suggest and to offer proof regarding any

other means to caleulate the reasonable royalties

to which it was entitled, and the Master properly

found that it should receive nothing.’’ 192a.

Paragraph 2(b) of the District Court’s final judg-

ment of October 6, 1980 reads:

‘*(b) The Special Master’s findings that plain-

tiffs had failed to prove the level of damages to

which they were entitled for defendant’s infringe-

ment in the manufacture of non-bumper parts, and

that the infringing process was of ‘relatively slight

importance’ to defendant in such manufacture, are

hereby adopted’’. 198a.

Paragraph 5 reads:

‘**5. Defendant General Motors Corporation shall

pay to Plaintiffs:

(i) $8,813,945.50 plus prejudgment interest in

the amount of $10,912,291.05 (which represents in-

terest through August 31, 1980) totalling $19,716,-

236.55; plus prejudgment interest of $3,071.22 for

each day thereafter up to and including the date

of entry of this judgment.

5)

“*(ii) plus postjudgment interest ‘from the date

of entry of this judgment at the rate allowed by

State law’ as provided by 28 USC 1961.

**(iii) with costs.”’ 199a.

On December 15, 1981, the Court of Appeals for the

Third Cireuit affirmed the District Court on all issues.

200a. As to non-bumper parts, its opinion stated that

“The statute requires the award of a reasonable roy-

alty, but to argue that this requirement exists even

in the absence of any evidence from which a court may

derive a reasonable royalty goes beyond the possible

meaning of the statute. * * * Here, piaintiffs’ proposed

standard was vitiated by the facts, and there was in-

sufficient evidence in the record upon which the fact

finder could rely in formulating an alternative’’. 231a.

Petitioner filed a timely petition for certiorari. No.

82-1718. The sole question presented the same issue as

the first question presented on the present petition, as

shown below:

PRESENTED QUESTION

IN Prior Petition 82-1718

‘“Where the Courts below have found continuous

infringement of plaintiffs’ patent by defendant,

affecting over 1.3 billion non-bumper parts and

resulting in savings to the defendant of over $60

million is it not error to award plaintiffs no com-

pensation whatsover for such infringement in light

of the statutory mandate of 35 U.S.C. 284?”’

PRESENTED QUESTION No. 1

CURRENT PETITION

‘Where the statute (35 U.S.C. 284) explicitly

provides that upon a finding of patent infringe-

ment, the court shall award ‘no less than a reason-

able royalty for the use made of the invention by

6

the infringer’ and where the lower courts found

that the defendant infringed in the manufacture

of 1.2 hillion non-bumper parts, did the courts be-

low eciamit reversible error of law in holding that

the award of no royalty whatsoever complies with

the statute? The holding of the Court of Appeals

for the Third Circuit below is in direct conflict

with decisions of the Federal Cireuit and Sixth

Cireuit which hold that the ‘literal terms of the

statute set a reasonable royalty rate as the mini-

mum below which an award of damages may not

fall.’ ”’

This Court denied Petitioner’s petitien for certiorari

on May 24, 1982. 456 U.S. 990. GM’s petition for cer-

tiorari was granted only on the issue of prejudgment

interest. 456 U.S. 988.*

Petitioner then filed a motion in the Court of Ap-

peals for the Third Circuit to send down its judgment,

in lieu of formal mandate—

“*. . . (a) affirming the District Courts’ judg-

ment in the amount of $8,813,945.50, constituting

the reasonable royalty award part of the Jude-

ment, plus postjudgment interest thereon from

October 6, 1980, the daie of entry thereof, at the

rate allowed by State law as provided by 28 U.S.C.

1961, and (b) postponing mandate as to the bal-

ance of the District Court’s final judgment pend-

ing Supreme Court review of prejudgment in-

terest.”’

30a. The motion was granted. 31a.

* Questions 2 and 3 of GM’s former Petition (81-1661), also sought

review of the reasonable royalty judgment and the alleged infringe-

ments on which it was calculated. The Petition was denied as to

these questions. If this Court should grant the present Technograph

Petition on question number 1, GM asks that review also be granted

on the merits of Questions 2 and 3 of GM’s former Petition.

7

GM duly paid the judgment. On July 8, 1982, the

District Court entered its Order, reading in part as

follows :

‘1. The Clerk of this Court is directed to enter

satisfaction of the reasonable royalty portion of

the judgment entered on October 6, 1980 in this

ease against GM in the principal amount of

$8,813,945.50

**9. Post judgment interest at a rate to be deter-

mined will accrue on the satisfied judgment in this

ease against GM through, but not after, July 7,

1982”’ 35a (emphasis added)

On May 24, 1983, this Court affirmed the award of

prejudgment interest. 242a (461 U.S. 648). GM forth-

with paid the prejudgment interest award of $11,022,-

854.97, and the District Court entered an order of satis-

faction ‘‘of the pre-judgment interest portion of the

judgment entered on October 6, 1980.”’ 44a, 46a.

Thereafter, Petitioner filed a motion to declare the

applicabie postjudgment interest rate with respect to

the satisfied judgment for .easonable royalties and pre-

judgment interest, totalling more than $19.8 million.

Petitioner argued for a rate of 16 percent interest plus

‘delay damages’’, based on the Delaware State law.

GM contended that the applicable rate under the Dela-

ware law was 6 percent, and that ‘‘delay damages’”’

should not be awarded since there had beer no delay

and compound interest was forbidden. On August

22, 1983, the District Court adopted the 16 percent

postjudgment interest rate sought by Petitioner and

awarded over $7 million in postjudgment interest. It

refused to award ‘‘delay damages”, since there had

been no delay in satisfying the postjudgment interest

and since compound interest was improper. 19a. Just

eight days after the August 22, 1983 opinion, and be-

8

fore the order thereon, General Motors paid the full

sum of $7,170,344.39 into court. 28a.

The Third Circuit concluded on appeal that interest

on the postjudgment interest is not allowable. lla. On

this and all other points, the Court of Appeals affirmed

the judgment below, stating:

‘*We hold that the district court did not err in

determining the rate of postjudgment interest to

be 16%, in denying Devex interest on postjudg-

ment interest, and in awarding plaintiffs interest

on costs. Accordingly, the judgment of the district

court will be affirmed.’’ 13a.

A timely petition for rehearing en banc was denied

on February 12, 1985. 49a.

SUMMARY OF ARGUMENT

This is the sixth petition for certiorari in this 29-

year-old case on a patent which expired more than 15

years ago. The issues raised are no longer of public

interest and are unworthy of attention by this Court.

Further, as to Petitioner’s question number 1, the

petition is almost four years after the December 15,

1981 final judgment sought to be reviewed. Such judg-

ment has not been reconsidered or altered in any way

and has been satisfied. The petition is untimely, and

this Court is without jurisdiction.

As to question number 2, the 1982 amendment to

28 U.S.C. 1961—applicable to all judgments entered

after October 1, 1982 but not to this case—eliminates

all reference to state laws and totally changes the

statutory rule as to interest on postjudgment interest.

Question number 2, therefore, involves only a private

controversy on a now-dead issue under a statute which

in its now-amended form resolves the issue.

9

I

QUESTION PRESENTED NO. 1

THE DAMAGES AMOUNT OF THE 1981 FINAL JUDGMENT

a. The petition is untimely and this Court has no

jurisdiction. 28 USC 2101(c). The December 15, 1981

judgment of the Court of Appeals fixed a dollar

amount of damages disposing of all questions as to

the reasonable royalties. It is the final and only judg-

ment dealing with reasonable royalties on any processes

at issue, whether for bumper or non-bumper parts.

Petitioners filed a timely petition for certiorari from

that judgment. No. 82-1718. It was denied on May 24,

1982. 456 U.S. 990. The question presented on that

petition was substantially identical with the first ques-

tion on the present petition.

The judgment affirmed by the Court of Appeals on

December 15, 1981 ordered GM to pay “$8,813,945.50

plus prejudgment interest in the amount of $10,912,-

291.05 (which represents interest through August 31,

1980) totalling $19,716,236.55; plus prejudgment in-

terest of $3,071.22 for each day thereafter up to and

including the date of entry of this judgment’’. 199a.

This order fixed the exact sum GM was required to

pay up to the date of entry of the judgment. All issues

as to reasonable royalties were resolved. The judgment

as to these issues has long since been final.

The dollar judgment fixed the sum GM was required

to pay, namely a reasonable royalty of $8,813,945.50,

plus prejudgment interest. It also fixed what GM was

not required to pay. It thus rejected all of Petitioner’s

demands for a greater sum in damages. In short, Peti-

tioner was adjudged entitled to $8,813,945.50 as the

10

total reasonable royalty—no more and no less. The

judgment finally concluded all issues as to the dollar

amount of royalty damages. The question of reasonable

royalties on non-bumper processes became a non-issue

at that time—and it has continued to be a non-issue

ever since.

The Court of Appeals judgment of December 3, 1984

does not reaffirm, modify, or even mention, the De-

cember 15, 1981 judgment. It is confined to wholly

separate controversies on the amount of postjudgment

interest and costs. These issues did not arise until at

least July 1, 1982, well after this Court had denied

certiorari on Petitioner’s questions dealing with rea-

sonable royalties. 38a. Further, no possible disposition

of these subsequent controversies did, or even could,

affect the previously settled reasonable royalty judg-

ment, which was satisfied on July 8, 1982. 35a.

In Federal Trade Commission v. Minneapolis-H oney-

well, 344 U.S. 206 (1952), this Court held that the 90

day period for petition for certiorari ran from the

first of two judgments entered in that case by the

court of appeals. The controlling point was that the

second judgment did not affect the substance of the

earlier judgment or entail any reconsideration of it.

Likewise here. The October 6, 1980 District Court judg-

ment requiring GM to pay specified sums (and no

more) up to the date of judgment (199a), affirmed

on December 15, 1981 (239a), has not been disturbed

since it became final by this Court’s denials of the

petitions for certiorari and its affirmance of the award

of prejudgment interest. Unlike Minneapolis-Honey-

well, supra, the December 3, 1984 judgment here does

not even refer to the earlier judgment, much less re-

NS

11

state it. It does not and cannot disturb any part of

the reasonable royalty dollar awards, settled over two

years earlier. This Court’s holding in Toledo Scale

Co. v. Computing Scale Co., 261 U.S. 399 (1923), is

to the same effect. There, as here, a final decree of

patent validity awarding damages had been entered

by the Court of Appeals, and a later judgment was

entered by that court on a subsequent controversy

which could not and did not alter the damages judg-

ment or involve any reconsideration of it. This Court

held that the later decree did not start a new period

for certiorari on the damages issue settled by the first

judgment.

Petitioner cites Hathorn v. Lovorn, 457 U.S. 255,

262 and Hughes Tool Co. v. Trans World Airlines,

Inc., 409 U.S. 363, to the effect that denial of cer-

tiorari imparts no implication or inference concern-

ing this Court’s view on the merits. p. 4, fn. This

argument misses the point. The question is not whether

this Court’s denial of the Petitioners’ 1982 petition

for certiorari resolved a contested issue now raised in

the present 1985 petition. Rather, the controlling in-

firmity is jurisdictional—because the present petition

was not filed within 90 days after the 1981 final judg-

ment herein.

Petitioner would now have this court reassess the

fact determination of the Special Master on non-

bumper reasonable royalties. Petitioner devotes many

pages of its petition to a one-sided and inaccurate

statement of alleged facts, all of which were available

and presented at the time of its first petition for cer-

tiorari in 1982. GM responded to these contentions

some three years ago and pointed out that the petition

misstated the facts, the fact findings of the master

12

were controlling and not clearly erroneous, and that

Petitioner has the burden of proving the reasonable

royalty. (GM Brief in Opposition, No. 81-1718.) This

Court then considered the petition and response and

after such consideration denied the petition on May

24, 1982. 456 U.S. 990. Now—five years after the Mas-

ter’s determination, and almost 4 years after the

Court of Appeals affirmance, Petitioner seeks a new

review of this previously settled old matter which

would extend this case even longer than the 29 years

that have passed since the case was filed.

b. No issue of public tmportance is here present.

The Court of Appeals for the Federal Circuit now

has exclusive jurisdiction to review district court judg-

ments where jurisdiction rests in whole or in part on

the patent laws. 28 USC 1295(a)(1), 1338. Whether

the Court of Appeals for the Third Circuit was right

or wrong in affirming the damages judgment, the deci-

sion is the last of its kind by that court. As such it

has no continuing importance. ;

Petitioner argues that the 1981 judgment of the

Third Cireuit on non-bumper parts in this case ‘‘is

in direct conflict with the Federal Cireuit’s holding”’

in Stickle v. Heublein, Inc., 716 F.2d 1550, 1561 (1983).

The two cases are entirely dissimilar on their facts,

and there is no conflict in the holdings. But even if

we assume that there is some resemblance and some

conflict, the petition here should be denied because

the Federal Circuit has already adopted the Stickle

rule. ;

13

II

QUESTION PRESENTED NO. 2

INTEREST COMPOUNDING UNDER OLD 28 U.S.C. 1961

28 U.S.C. 1961, as applicable to the October 6, 1980

judgment in this case, provided that ‘‘interest shall

be allowed on any money judgment in a civil case

recovered in a District Court .. . Such interest shall

be calculated from the date of entry of the judgment,

at the rate allowed by State law.’’ Following this

statutory command, the October 6, 1980 District Court

judgment herein states that there be ‘‘postjudgment

interest from the entry of this judgment at the rate

allowed by State law’’. 199a.

The then-applicable provisions of 28 U.S.C. 1961

have been totally replaced. Public Law 97-164. The

new law, effective on October 1, 1982, provides that

interest allowed on money judgments in civil cases is

to be based on certain interest rates applicable to

United States Treasury bills. The new law specifically

provides that ‘‘Interest shall be computed daily...

and shall be compounded annually.”’

The October 1, 1982 change is a substantially total

rewrite of the statutory provision for calculation of

interest on federal civil judgments. First, State law

is completely eliminated as a criterion. Instead, a geo-

graphically uniform interest rate is made applicable

to civil judgments as a matter of federal law. Second,

the interest rate is based on the auction price of fifty-

two week United States treasury bills, not whatever

fixed or market-related interest rate a particular state

applies. Third, interest on all judgments is computed

on a daily basis, and compounded annually, instead of

14

whatever periods of computation and whatever rule as

to compounding applies under the old law. These are

fundamer‘al changes—not just an amendment within

the fram: ork of the prior law. Virtually no decision

this Cou.. could make respecting the pre-1982 law can

have any relevance to cases arising under the post-

1982 statute.

This case illustrates the difference in the statutes.

Following old 28 USC 1961, the District Court care-

fully reviewed the Delaware State law on postjudg-

ment interest, including an amendment to the Dela-

ware law effective on April 18, 1980. It resolved

the question of whether the postjudgment interest

rate under Delaware law is 6 percent or 16 percent

in favor of the latter figure by distinguishing what

until then had been an unbroken line of Delaware

eases applying the 6 percent figure. 20a-23a. Similarly

relying on Delaware state court decisions the Court of

Appeals concluded that the District Court correctly

interpreted the Delaware state law, and affirmed the

16 percent rate. 5a-7a. These inquiries would be totally

irrelevant under 28 USC 1961 after the amendment

effective October 1, 1982.

As to interest on postjudgment interest, the District

Court here considered the Delaware law applicable.

Citing a Federal District Court case interpreting the

Delaware law, it concluded that under the Delaware

law compounding of interest on postjudgment interest,

or ‘‘delay damages”’ are not allowable. 25a. The Court

of Appeals agreed with the District Court that com-

pound interest is not allowable. 7a-12a. Again, the

whole exercise is now academic. The Congress resolved

all question of whether Federal law or State law ap-

plies on compounding postjudgment interest in new 28

15

USC 1961—along with the other fundamental changes

discussed above.

Clearly, the massive changes in 28 U.S.C. 1961 ef-

fective on October 1, 1982—including the explicit pro-

vision for compounding of postjudgment interest cal-

culated on a daily basis from the treasury bill auction

prices—assure that the compound interest problem of

Petitioner’s second question will never occur again.

Clearly, there is no substantial public purpose to be

served by this Court resolving the issue for this singu-

lar case when the Congress has resolved the matter

for all other cases.

While the lack of public interest in Petitioner’s ques-

tion number 2 should dictate denial, the ruling below

is correct and, in accordance with Delaware law, as

the District Court held. Papendick v. Robert Bosch,

562-CA-1977, slip op. at 4 (Del. Super. Ct., August

4, 1981), aff’d No. 238, 1981 (Del., March 11, 1982)

(unreported opinion) and Pack and Process, Inc. v.

Nabisco, Inc., C.A. No. 78-285, Slip Op. at 6-7 (D.

Del., September 18, 1981). If the federal law is deemed

applicable, as the Third Circuit has ruled, Petitioners

fare no better. As the opinion of that court states:

‘Although we decide this issue under federal

rather than state law, we agree with the district

court that allowing interest on the postjudgment

interest would amount to the compounding of in-

terest, which ‘as a general rule, is not allowed to

be computed on a debt.’ Cherokee Nation v. United

States, 170 U.S. 476, 490 (1925). See also, Brook-

lyn Bank v. O’Neil, 324 U.S. 697, 715 (1945). 11a.

Contrary to Petitioner’s argument, postjudgment

interest is not an unsatisfied judgment. As the Court

of Appeals squarely held:

16

‘‘In the case at bar, however, the postjudgment

interest cannot be considered an unsatisfied for-

mer judgment, because the amount of the judg-

ment itself was in dispute until the Supreme Court

decision in May 1983, and the rate of postjudg-

ment interest was not fixed until August 1983”.

lla.

Dorey v. Dorey, 609 F(2d) 1128 (5th Cir., 1980), Peti-

tion, page 20, is clearly inapplicable because it deals

with normal postjudgment interest, not interest on

the interest on judgments. And National Bank v. Me-

chanics National Bank, 94 U.S. 487 (1867), Petition,

page 23, is likewise inapplicable because it, too, merely

applied simple, not compound interest. To the same

effect is, Stewart v. Barnes, 153 U.S. 465 (1893).

Finally, the record contradicts Petitioner’s charges

as to GM’s delay and bad faith. The Master found

as the fact that GM ‘‘acted in good faith and not reck-

lessly’’. 106a. The Third Cireuit found in its November

28, 1984 opinion that the “issues raised on appeal by

General Motors regarding pre- and postjudgment in-

terest were genuine and not dilatory, and there is no

reason to punish General Motors for raising them’’.

10a. General Motors prevailed in the extensive validity

trial in 1961. 105a. It again prevailed in the exten-

sive infringement trial in 1969. Idem. The master

noted that GM ‘‘merits a major share of the credit

for the formulation of Appendix II of the pretrial

order’’ and that it was “‘flexible, cooperative and forth-

coming’’. 94a. Moreover, as each amount due for rea-

sonable royalties, prejudgment interest, and postjudg-

ment interest was settled, GM promptly paid the re-

spective sums. 35a, 44a, 28a. It follows that Peti-

tioner’s arguments that delay in paying postjudgment

17

interest was attributable to General Motors’ dilatory

appeals is erroneous. Petition pp. 21-24.

CONCLUSION

The petition should be denied.

Respectfully submitted,

ARTHUR G. CONNOLLY

ARTHUR G. CoNNOLLY, JR.*

CONNOLLY, Bove, LopGE AnD Hutz

1220 Market Building

Post Office Box 2207

Wilmington, DE 19899

(302) 658-9141

Attorneys for General Motors

Corporation

Of Counsel:

WuuiuM A. ScHvetz, Esq.

General Motors Corporation

Detroit, MI 48232

GrorcE E. Frost, Esq.

BarNEs, KissELLe, RaIscH,

CHoaTE, WHITTEMORE AND HULBERT

Birmingham, MI 48011

*Counsel of Record

Rule 28.1 listing appears in the Appendix to this brief.

APPENDIX

la

EXHIBIT 1

Pursuant to Supreme Court Rule 28.1, GM's non-wholly

owned subsidiaries and affiliates are:

Aralmex, S.A. de C.V. (Mexico)

Automotriz Gencor S.A. (Ecuador)

Autos y Maquinas del Ecuador S.A. (AYMESA) (Ecuador)

Compania Nacional de Direcciones Automotrices, S.A. de C. V.

(Mexico)

Compresores Delfa, C.A. (Venezuela)

Convesco Vehicle Sales GmbH (West Germany)

Daewoo Motor Co., Ltd. (Korea)

DHB—Componentes Automotivos S.A. (Brazil)

Fabrica Colombiana de Automotores S.A. (“Colomotores”)

(Columbia)

General Motors de Colombia S.A. (Columbia)

General Motors Egypt, S.A.E. (Egypt)

General Motors Iran Limited (Lran)

General Motors Kenya Limited (Kenya)

GM Allison Japan Limited (Japan)

GM Fanue Robotics Corp. (USA)

Industries Mecaniques Magbrebires, S.A. (Tunisa)

Industrija Delova Automobila, Kikinda (Yugoslavia)

Isuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kabelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk Berlin GmbH (West Germany)

2a

Kabelwerke Reinshagen Werk Neumarkt GmbH (West

Germany)

Moto Diesel Mexicana, S.A. de C.V. (Mexico)

Motor Enterprises, Inc. (USA)

New United Motor Manufacturing, Inc. (USA)

Omnibus BB Transportes, S.A. (Ecuador)

Promotora de Partes Electronicos Automotrices (Mexico)

P.T. Mesin Ksuzu Indonesia (Indonesia)

Senalizacion y Accesorios del Automovil Yorka, S.A. (Spain)

Suzuki Motor Co., Ltd. (Japan)

Unicables, S.A. (Spain)

Some of the processes accused as infringements in relation to

question No. 1 were performed by GM using materials pur-

chased under indemnity agreements with one or more of the

following:

1. Amchem Products, Inc.

2. Bethlehem Steel Corporation

3. Braun Engineering Company

4. Colt Industries, Inc.

5. LTV Corporation

6. Occidental Petroleum Corporation

7. Pennwalt Corporation

8. Republic Steel Corporation

9. United States Steel Corporation