Patents-Adjudication of Validity in Infringement Cases Where Alternative Grounds for Dismissal Exist

Petitioner's complaint alleging validity and infringement of his patent was dismissed by the trial court on the ground that petitioner had granted to respondent an implied license or "shop right." On appeal, petitioner claimed, among other things, error in the refusal of the trial court to rule on the questions of validity and infringement of the patent. Respondent moved to strike these claims from petitioner's statement of points on appeal. Held, motion denied. Failure of the trial court to pass on the questions of validity and infringement does not preclude the petitioner from arguing these issues on appeal.

Kierulff v. Metropolitan Stevedore Co., 300 F.2d 614 (9th Cir. 1962).