762 F.2d 1011
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.S & H COMPUTER SYSTEMS, INC., DEFENDANT-APPELLEE,v.SAS INSTITUTE, INC., PLAINTIFF-APPELLANT.
NO. 83-5435
United States Court of Appeals, Sixth Circuit.
4/1/85

ORDER
Before:  LIVELY, Chief Judge, ENGEL, Circuit Judge; and CELEBREZZE, Senior Circuit Judge.


1
Plaintiff SAS Institute, Inc.  (Institute) appeals from the denial of a motion for preliminary injunction by the United States District Court for the Middle District of Tennessee.


2
On August 2, 1982, plaintiff Institute filed a complaint against defendant S & H Computer Systems, Inc.  (S & H) alleging that S & H copied plaintiff Institute's statistical computer program known as SAS.  SAS is a statistical computer program which only works on IBM computers.  The Institute alleges that S & H desired to have a SAS type program for Digital Equipment Corporation computers.  The Institute claims that S & H leased the SAS computer program and developed a Digital compatible program called INDAS from it in violation of the Copyright Act of 1976, Title 17, United States Code.  The complaint also charges breach of contract, violation of trade secrets, unfair competition, fraud and unjust enrichment.


3
The Institute sought a preliminary injunction prohibiting defendant S & H from distributing the computer software program known as INDAS.  On June 10, 1983, the district court denied the motion for a preliminary injunction on grounds that the court did not have available days prior to the trial in order to hear proofs in support of the motion.  The case went to trial before the court, which sat without a jury, on September 12, 1983.  The trial was concluded on September 20, 1983.


4
The appeal from the denial of preliminary injunction, meanwhile, proceeded in this court with the filing of briefs and a joint appendix.  Because of the difficulty of determining whether the preliminary injunction was properly denied without having the benefit of findings of the trial court, we remanded the cause to the district court for findings expressed in terms of the four standards for the grant or denial of a preliminary injunction.  We however, retained jurisdiction over the appeal.


5
On March 6, 1985, the district court rendered an opinion finding that S & H violated the Institute's copyright in the statistical computer program known as SAS and breached a licensing agreement between the parties.  The district court entered an order enjoining S & H from marketing of the product styled 'INDAS' or any other product copied or derived therefrom or from the computer program product SAS.  Since the district court has rendered a decision upon the merits and has granted a permanent injunction, the Institute's appeal from the denial of its motion for a preliminary injunction is moot.


6
IT IS ORDERED that the appeal is dismissed.  Nothing in this order is intended to affect the right of either party to perfect a subsequent appeal from the final judgment.  Each party shall bear its own costs of this appeal.

