It has been held many times that 28 U.S.C. § 1292(a)(4) gives a right of interlocutory appeal in a patent case where there is an adjudication of infringement (which necessarily implies patent validity), an accounting is ordered, and the adjudication is final except for the actual accounting, Ronel Corp. v. Anchor Lock of Florida, Inc., 312 F.2d 207, 209 (5th Cir. 1963); Illinois Tool Works Inc. v. Brunsing, 378 F.2d 234, 236 (9th Cir. 1967); American Cyanamid Co. v. Lincoln Laboratories, Inc., 403 F.2d 486 (7th Cir. 1968). 28 U.S.C. § 1292 gives Circuit Courts of Appeals jurisdiction over district court decrees of infringement and validity based on the merits of the case which are entered prior to actual determination of the amounts of profits or damages to be awarded, Russell Box Co. v. Grant Paper Box Co., 179 F.2d 785, 787 (1st Cir. 1950). The statute permits:
We have held that § 1292(c)(2)"does not go so far as to permit us to consider [a] non-final order" that is related to the accounting. Alfred E. Mann Found. for Sci. Research v. Cochlear Corp. , 841 F.3d 1334, 1347 (Fed. Cir. 2016) (holding that this court lacked jurisdiction to review a district court order granting a motion for a new trial on damages where there was no final decision on damages); see also Russell Box Co. v. Grant Paper Box Co. , 179 F.2d 785, 787 (1st Cir. 1950) (holding that the court lacked jurisdiction under a prior version of § 1292(c)(2) where the order appealed from was "a purely interlocutory one incidental to the accounting"). Thus, because the order appealed from is itself non-final, we lack jurisdiction under § 1292(c)(2).
Prior to the creation of this court, the regional courts of appeals also recognized that an accounting included the calculation of damages. See, e.g., Russell Box Co. v. Grant Paper Box Co., 179 F.2d 785, 787 (1st Cir.1950); Maxon Premix Burner Co. v. Eclipse Fuel Eng'g Co., 471 F.2d 308, 313 n. 6 (7th Cir.1972); Miller Hatcheries v. Buckeye Incubator Co., 41 F.2d 619, 620 (8th Cir.1930); Icyclair, Inc., v. Dist. Court of U.S. for S. Dist. of Cal., Cent. Div., 93 F.2d 625, 626 (9th Cir.1937). Finally, this court has likewise repeatedly recognized that an accounting includes the determination of damages.
PER CURIAM. On the authority of Russell Box Company v. Grant Paper Box Company, 1 Cir., 179 F.2d 785, the appeal herein is dismissed for lack of jurisdiction.