884 F.2d 1397
SCIENTIFIC NRG, INC., Plaintiff-Appellant,
v.
Truman AUBREY d/b/a Janmar Lighting, Defendant/Cross-Appellant.
Nos. 89-1412, 89-1413.
United States Court of Appeals, Federal Circuit.
June 28, 1989.
Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before FRIEDMAN, BISSELL and ARCHER, Circuit Judges.
BISSELL, Circuit Judge.
ORDER
The court, sua sponte, considers whether this appeal and cross-appeal must be dismissed as prematurely filed.
On March 7, 1989, the United States District Court for the Central District of California issued "Findings of Fact and Conclusions of Law." The findings and conclusions encompassed patent unenforceability, patent noninfringement, trademark noninfringement, and unfair competition. A hearing on the damages on the unfair competition claims remains. Further, the court has not entered any judgment.
Scientific NRG, Inc. contends that the case is appealable under 28 U.S.C. Sec. 1292(c)(2) (infringement action is appealable when "final except for an accounting"). However, the accounting that remains in this case is related to unfair competition claims not to infringment. Hence, the deferred determination of damages is not a deferred "accounting" within the meaning of Sec. 1292(c)(2). See W.L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d 614, 617 (3rd Cir.1976).
Accordingly,
IT IS ORDERED THAT:
(1) The appeal and cross-appeal are dismissed without prejudice.
(2) No additional fees shall be required for future appeals.