This is an appeal by defendants, Asgrow Seed Company, Asgrow Seed Company International, Asgrow Kilgore Company, and United Hagie Hybrids, Inc., from a consent judgment of patent validity and infringement rendered in favor of plaintiff, Research Corporation. Research has moved to dismiss the appeal on the ground that defendants, as members of a class under Fed.R.Civ.P. 23, have no right to appeal. After consideration of the record and the briefs of both parties, we dismiss the appeal.
The facts are not in dispute. In 1963 Research sued Pfister Association Growers, Inc. for infringement of U.S. Patent No. 2,753,663 which claims a method for producing hybrid seed corn. Subsequently, additional defendants were added and the complaint was amended to allege a violation of the antitrust laws. Trial was held on the infringement issue in 1966 and, after an impartial expert filed a report covering technical matters, the case was taken under advisement by the court in 1968.
Shortly thereafter, Research commenced the instant infringement action on the same patent, naming six companies as defendants and as representatives of a class consisting of all those who had allegedly infringed the patent. Under the local district court rule this case was assigned to the district judge who conducted the trial in the first infringement action. On December 30,
In April 1969 the named defendants moved to dismiss the complaint on the ground that the case could not properly be maintained as a class action. The motion was denied by the court.
On September 6, 1969 Research mailed copies of a September 4 court order to members of defendant class announcing the agenda for a hearing on September 15, 1969 and scheduling another hearing for September 16 to discuss possible settlement terms. At no time did appellants ask for exclusion from the binding effect of a judgment against the class in the antitrust action or seek intervention as a party defendant.
Judgments rendered in class actions conducted under Fed.R.Civ.P. 23(b) (1) and (b) (2) will bind non-party class members, Smith v. Alleghany Corp., 394 F.2d 381 (2d Cir.1968), including persons who have intervened or objected, Schwartzman v. Tenneco Manufacturing Co., 375 F.2d 123 (3d Cir. 1967). In order to insure that the interests of non-party class members are protected, Fed.R.Civ.P. 23(e) requires notice to class members of a proposed settlement or compromise and court approval of settlements or dismissals. If a class member intervenes or even appears in response to a notice pursuant to Fed. R.Civ.P. 23(e) and objects to the dismissal or compromise, Cohen v. Young, 127 F.2d 721, 724 (6th Cir.1942), he has a right to appeal from an adverse final judgment. J. Moore, 3B Federal Practice ¶ 23.80  at 23-1557 (2d Ed.1969). However, in order to encourage or even to permit settlement, a person in disagreement with the terms of a settlement