Argued April 19, 1960.
Decided May 9, 1960.
Thomas Cooch, Wilmington, Del., for appellant.
Floyd H. Crews, New York City, for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
Du Mont has moved to docket and dismiss the appeal at bar, that of Pierce, Executrix. The basis asserted for dismissal is the death of the original plaintiff, G.W. Pierce. The suit involves the validity and infringement of certain patents formerly owned by him and now possessed by his Executrix. Du Mont asserts that since, allegedly, the cause of action did not survive G.W. Pierce's death the suit should have been dismissed by the court below since his Executrix does not have the standing to maintain it. The court below ruled against Du Mont on this issue and determined the case on the merits rendering judgment against the Executrix. Pierce v. Allen B. Du Mont Laboratories, Inc., D.C. 1959, 178 F. Supp. 84.
Du Mont's motion must be denied. We can dismiss an appeal only if we lack jurisdiction to entertain it. Here, clearly we have jurisdiction to decide whether the court below was right or wrong in holding (1) that the Executrix had the right to maintain the suit, and (2) whether the court below was right or wrong in holding on the merits that the patents sued on were invalid and not infringed. Consequently the motion to dismiss must be denied. An order to that effect will be entered.