Opinion
No. 114, Docket 25080.
Argued February 6, 1959.
Decided March 6, 1959.
Appeal from the United States District Court for the Southern District of New York; Irving R. Kaufman, Judge.
Defendants appeal from an order, D.C.S.D.N.Y., 156 F. Supp. 484, dismissing a counterclaim seeking a declaratory judgment of noninfringement of certain of the plaintiffs' patents and an injunction enjoining plaintiffs from charging defendants with infringement of these patents.
John B. Cuningham, New York City (Irving G. Idler, of Ferguson, Idler Hayes, and Joseph D. Lazar, Roy C. Hopgood, and Gerald W. Griffin, New York City, on the brief), for defendants-appellants.
John Vaughan Groner, New York City (Judah B. Felshin, John Farley, and Ronald F. Ball, New York City, on the brief), for plaintiffs-appellees.
Before CLARK, Chief Judge, MADDEN, Judge, United States Court of Claims, and HINCKS, Circuit Judge.
Sitting by designation pursuant to the provisions of 28 U.S.C. § 291(a).
On Judge Kaufman's well reasoned opinion below, D.C.S.D.N.Y., 156 F. Supp. 484, we affirm his holding that there is no present controversy between the parties as to the patents involved in the dismissed counterclaim. Defendants stress here the close factual relation between five of these patents and the patents alleged in plaintiffs' complaint to be infringed. Should the scope or the validity of any of these patents be relevant to the charges made in the complaint, surely these matters can be litigated under the present pleadings or under such amendments to the pleadings as are not precluded by Judge Kaufman's order.
Affirmed.