[Download] "Cover v. Schwartz." by United States Court of Appeals for the Second Circuit ~ eBook PDF Kindle ePub Free

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eBook details

• Title: Cover v. Schwartz.
• Author : United States Court of Appeals for the Second Circuit
• Release Date : January 08, 1943
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 51 KB

Description

However, if there was ever any doubt about it, that petition makes his position, as to Patent No. 2,000,064, indubitably clear. For, referring to the statement which we previously quoted from his original brief "[Appellant does not challenge that part of the judgment which holds the claims not infringed"], he now states that "perhaps it would have been more accurate," if he had said that "appellant waives the question of infringement" or "concedes there is no infringement." He adds that it was his purpose "to waive the question of infringement," and on this appeal merely to assert error as to the judgment of invalidity, because his attorneys, "in view of what occurred at the trial, came to the deliberate conclusion that that patent was not infringed." There can, then, be no question that not by inadvertence but deliberately, with commendable candor and no effort to evade, appellant takes this position: Although in the trial court he had thought that he had a controversy with appellee, whom he then regarded as an infringer, he concedes that there is no longer any such controversy because the trial in the court below convinced him that appellee has neither infringed nor threatened to do so, with the consequence that appellee is now an utter stranger to him litigiously; nevertheless, although there is no real controversy before this court, and he is now seeking no relief of any kind against appellee or anyone else, he asks this court to hold that his patent is valid. It would be difficult to imagine a clearer instance of a request for a purely advisory opinion. Such an opinion the Supreme Court, with unswerving consistency, has held no federal "constitutional" court - because of Article III, Section 2 - has the constitutional power to give. In such a suit we cannot pass on the "merits" for, where there is no "justiciable" dispute, there are no "merits." There is merely an unreal entity resembling that disembodied smile which Lewis Carroll immortalized. Many Supreme Court decisions teach us that appellate jurisdiction, when no justiciable dispute exists on appeal, cannot be rested upon the recollection that such a dispute previously existed when the case was in the trial court. There is nothing "technical" - unless all decisions in conformity with constitutional restraints on the powers of the federal judiciary are "technical" - in our conclusion that we must dismiss this appeal for want of jurisdiction, and thereby leave standing the judgment in favor of appellee who had been engaged in what was a real controversy in the court which entered that judgment.

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