UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Decided: March 29, 1984.
WINCHESTER ELECTRONICS DIVISION, LITTON SYSTEMS, INC., APPELLANT,
THOMAS & BETTS CORPORATION, APPELLEE
JACK R. MILLER, Circuit Judge
The motion of appellee, Thomas & Betts, for summary affirmance is considered as a motion to dismiss the appeal of appellant Winchester from the denial by the district court of Winchester's Fed. R. Civ. P. 60(b) motion. This court has previously denied Winchester's motion for resolution of a preliminary procedural issue. Winchester has filed (1) a motion for expedited consideration of this appeal, (2) a motion for assignment to a new panel, and (3) an opposition to Thomas & Betts Corporation's motion to dismiss the appeal.
It is apparent that Winchester has anticipated that the court would decline to accept its untimely opposition to Thomas & Betts' motion to dismiss the appeal and would decline to hear its "single strut prebent contact" argument impermissibly raised for the first time on appeal, and equates such disposition of those matters as "possible prejudice" of this panel.
The court having considered the submissions of the parties, IT IS ORDERED THAT:
(1) Winchester's motion for expedited consideration of the appeal is denied,
(2) Winchester's motion for assignment to a new panel is denied,
(3) Thomas & Betts' motion for summary affirmance, treated as a motion to dismiss the appeal, is granted in view of this court's order dated February 23, 1984, this court's opinion of November 14, 1983, in the previous appeal, Thomas & Betts Corporation v. Litton Systems, Inc., 720 F.2d 1572, 220 USPQ 1 (Fed. Cir. 1983), and the denial of Winchester's petition for rehearing in that appeal.
A petition for rehearing and a suggestion for rehearing in banc having been filed in this case,
UPON CONSIDERATION THEREOF, it is Ordered by the court that the petition for rehearing be, and the same is hereby, Denied.
The suggestion for rehearing in banc is declined.
Circuit Judge Nies took no part in the consideration of or decision on the suggestion for rehearing in banc.
Before MILLER, Circuit Judge, SKELTON, Senior Circuit Judge, and SMITH, Circuit Judge.
Having considered the submission of the appellant, IT IS ORDERED THAT:
Appellant's motion for resolution of a preliminary procedural issue be denied.
We are persuaded that the district court did not intend to imply that it lacked jurisdiction to entertain a Rule 60(b) motion in its Order of January 19, 1984, and denied appellant's motion because this court, in its opinion of November 14, 1983, in related appeal No. 83-537,*fn1 had already ruled on precisely the same issue appellant seeks to raise in its Rule 60(b) motion, viz., infringement of the claims in issue by appellant's "single strut" connector.
We note that this court's opinion in appeal No. 83-537 pointed out that validity of the Narozny patent was not in issue.
Also, we find no basis for application of Rule 60(b) where an appellate court has decided a question of law (claim construction) differently from the trial court in disposing of the issue of infringement.