concurring and dissenting.
I join in the majority opinion except for that portion of Part II affirming the trial court’s proposed identification system for the reverse engineered parts. I would reverse that part of the preliminary injunction as well.
As the majority opinion states, the issue before us is whether the preliminary injunction is a proper implementation of the earlier order requiring unique identification of parts manufactured by Williams. The solution devised by the district court meets that objective, but in a way that unnecessarily restricts Williams’ ability to sell the parts.
The J-65 jet engine is used in military aircraft and a purchaser of parts must take into account the possibility that the engines will require repair under combat conditions. Sophisticated facilities, adequate supervision and ample time are not always available in those circumstances and hence the possibilities for error increase. To add to these difficulties by using a parts designation scheme that must be decoded and correlated with numbers in a repair manual is hardly a selling advantage. Williams’ contention that his customers want the parts identified by number is not incredible, particularly in the case of sales to foreign countries.
The net result of the trial court’s order is to grant a competitive edge to CurtissWright that is not warranted by the present posture of the litigation and is inconsistent with the court’s decision to permit Williams to sell the reverse engineered parts. This state of affairs arises from an over-emphasis on the necessity for identification in the event of a parts failure and a lack of attention to the needs of the mechanic on the line. The possibility of confusion by workmen is all too real in the formula devised by the district court. A mechanic in a foreign country can be expected to identify a part numbered 3692 without much trouble. If, however, he picks up a Williams’ part marked CFIB, he may not know that it is the same part. Or, even more to the point, he may not know that CFIE is a different one.
The record shows that there are other feasible methods that make the marking distinctive, yet retain the part number. For example, the figures could be italicized or inscribed by a different process than that used by Curtiss-Wright. The number could also be underlined, encircled or boxed. Each of these alternatives or, indeed, a combination of some or even all of them, would solve the problem of identification. In addition to simplicity, such a solution would allow Williams to sell to customers who insist upon number identification for the parts.
I recognize the limited review we extend to the grant or denial of preliminary injunctions, but the order at issue here demands correction. I would remand with instructions that a means of identification be devised that, unlike the one framed by the district court, would not have such an unnecessary, anti-competitive drawback.