Pleading and practice; involuntary dismissal pursuant to Rule 102(b); failure to prosecute certain patent claims.— These cases have previously been before the court — see 222 Ct.Cl. 550 (1980) and 225 Ct.Cl. 753 (1980). Plaintiff seeks recovery from the United States for the use or manufacture by or for the United States of coordinate measuring machines which allegedly infringe one or more of plaintiffs patents. Plaintiff alleges infringement, inter alia, of claims 1-6 and 12-20 of Patent No. 3,226,833, claims 1-3 of Patent No. 3,481,042, and claims 1-12 of Patent No. 3,636,635. Subsequently, plaintiff indicated that only claim 15 of Patent 3,226,833, claim 1 of Patent 3,481,042, and claim 12 of Patent 3,636,635 would be asserted against defendant and the third-party defendants in these actions. Later, defendant and the third-party defendants filed a joint motion for involuntary dismissal seeking dismissal with prejudice of the claims not asserted by plaintiff. In support of their motion the movants asserted considerations of judicial economy and the right of movants to be free of future harassment via lawsuits seeking recovery for alleged infringement of the non-asserted claims by equipment which is the subject of the present litigation. Trial Judge Robert M.M. Seto in his recommended decision filed May 28, 1982 concluded that to permit plaintiff to preserve the non-asserted claims for future litigation would be a manifest waste of the court's resources, and that defendant and the third-party defendants are entitled to be free from the specter of future litigation involving nearly identical issues of fact and law. Accordingly, the trial judge determined that claims 1-6, 12-14, and 16-20 of Patent 3,226,833, claims 2 and 3 of Patent 3,481,042 and claims 1-11 of Patent 3,636,635 be dismissed from these actions, with prejudice, pursuant to Rule 102(b)(2). On August 20, 1982 the court, by order, adopted the trial judge's decision as the basis for its judgment in this matter, granted defendant's and third-party defendants' joint motion for involuntary dismissal, and dismissed claims 1-6, 12-14 and 16-20 of Patent 3,226,833, claims 2 and 3 of Patent 3,481,042, and claims 1-11 of Patent 3,636,635 with prejudice.
[On July 26, 1983 judgment was entered that the complaint be dismissed in both cases. On September 21, 1983 plaintiff filed an appeal to the Court of Appeals for the Federal Circuit.]