573 F2d 191 Wayne-Gossard Corporation v. Moretz Hosiery Mills Inc

573 F.2d 191

200 U.S.P.Q. 12


Nos. 76-2416 and 77-2189.

United States Court of Appeals,
Fourth Circuit.

Argued March 7, 1978.
Decided March 30, 1978.

David Rabin, Greensboro, N. C. (Walter L. Beavers, Greensboro, N. C., Richard A. Williams, Newton, N. C., on brief), for appellant in 77-2189 and 76-2416.

Joseph W. Grier, Jr., Charles B. Park, III, Charlotte, N. C. (Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, Bell, Seltzer, Park & Gibson, Joell T. Turner, Irvin W. Hankins, III, Charlotte, N. C., on brief), for appellee in 77-2189 and 76-2416.

Before WINTER and BUTZNER, Circuit Judges, and HOFFMAN,* Senior District Judge.


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In Wayne-Gossard Corporation v. Moretz Hosiery Mills, Inc., 539 F.2d 986 (4 Cir. 1976), we held that 35 U.S.C. § 252 applied to narrowed reissues and we remanded the case for further consideration as to whether Moretz could avail itself of the defense under § 252 and, if so, for application of the remedial provisions of § 252. The district court held that Moretz could invoke rights under § 252; and under that section it should compensate plaintiff for only its postreissue infringement at a royalty of twenty-five cents per dozen pairs of infringing foot socks with simple interest at six percent per annum, less the cost of conversion and reconversion of machinery, placed in operation to produce infringing socks, to adapt it to manufacture non-infringing foot socks. Moretz was enjoined from further infringement after October 23, 1979.


After consideration of the arguments, oral and written, and the pertinent portions of the record, we think that the district court correctly determined the matter on remand for the reasons sufficiently stated in its opinion. Wayne-Gossard Corporation v. Moretz Hosiery Mills, Inc., 447 F.Supp. 12 (W.D.N.C.1976).


We also think that the district court did not abuse its discretion in denying Moretz's motion under Rule 60(b)(6), F.R.Civ.P., for the reason assigned by it.




Senior United States District Judge for the Eastern District of Virginia, sitting by designation