Opinion
No. 12633.
August 9, 1951.
Carr Carr Gravely, Joseph J. Gravely, St. Louis, Mo., Harris, Kiech, Foster Harris, Ward D. Foster, Los Angeles, Cal., for appellant.
C.A. Miketta and W.W. Glenny, Los Angeles, Cal., for appellee.
Before DENMAN, Chief Judge, HEALY, Circuit Judge, and GOODMAN, District Judge.
The judgment is affirmed on the findings of fact and conclusions of law of the district court, except as to the judgment for attorneys' fees. There is no showing or finding of unfairness or bad faith in the conduct of the losing party nor any other equitable consideration of similar force which makes it grossly unfair that the winner of this lawsuit be left to bear the burden of his own counsel fees which prevailing litigants normally bear, to bring the award within the discretionary power conferred in 35 U.S.C.A. § 70. Park-In-Theatres, Inc. v. Perkins, 9 Cir., 190 F.2d 137.
The judgment is reversed in so far as it awards attorneys' fees in the sum of $3,000.