Summary
stating that an accounting should be ordered in order to adequately compensate the plaintiff
Summary of this case from Whitserve, LLC v. Computer Packages, Inc.Opinion
Nos. 2008-1228, 2008-1252.
September 30, 2009.
Appeals from the United States District Court for the District of Minnesota in case no. 05-CV-831, James M. Rosenbaum, Chief Judge.
Bryan J. Wilson, Morrison Foerster LLP, Palo Alto, CA, Thomas L. Hamlin, Stephen P. Safranski, Heather M. McElroy, Robins, Kaplan, Miller Ciresi, Minneapolis, MN, Richard S.J. Hung, Morrison Foerster LLP, San Francisco, CA, for Plaintiff-Appellant.
Rudolf E. Hutz, Francis Digiovanni, Steven A. Nash, Connolly Bove Lodge Hutz LLP, Wilmington, DE, Alan M. Anderson, Briggs Morgan, PA, Minneapolis, MN, for Defendant-Cross Appellant.
Circuit Judge NEWMAN did not participate in the vote.
ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC
ORDER
A combined petition for panel rehearing and for rehearing en banc was filed by Ecolab, Inc. ("Ecolab") in Ecolab, Inc. v. FMC Corp., 569 F.3d 1335 (Fed. Cir. 2009), and a response thereto was invited by the court and filed by FMC Corporation. The petition for rehearing and response were referred to the panel that heard the appeal.
The panel has considered the petition for panel rehearing and the response to that petition, which was limited to Ecolab's assertion that this court erred by failing to address its argument that the district court erroneously denied Ecolab's motion for prejudgment interest on its trade secret damages award. Having considered the petition and response, the panel grants Ecolab's petition for panel rehearing for the limited purpose of amending its original opinion to remand to the district court to resolve
the issue of prejudgment interest on Ecolab's trade secret damages award. It appears there was no dispute that prejudgment interest is available to Ecolab, and on remand, the district court should ascertain the appropriate amount of such interest owed based upon applicable state law.
The petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that Ecolab, Inc.'s petition for panel rehearing be, and the same hereby is, GRANTED for the limited purpose stated herein. As for the remaining issues raised by Ecolab, the petition for panel rehearing is DENIED, and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 7, 2009.