Lang v. Patent Tile Company
Decision Date | 04 November 1954 |
Docket Number | No. 14896.,14896. |
Citation | 216 F.2d 254 |
Parties | Gus W. LANG, v. PATENT TILE COMPANY, Inc. |
Court | U.S. Court of Appeals — Fifth Circuit |
W. O. Mehrtens, Miami, Fla., Richard P. Schulze, Washington, D. C., Alfred E. Sapp, Miami, Fla., Webster G. Wallace, for appellant.
Forrest E. Gotthardt, Miami, Fla., Morehead, Forrest, Gotthardt & Orr, Chas. A. Morehead, Miami, Fla., for appellee.
Before BORAH, RIVES and TUTTLE, Circuit Judges.
Defects of the District Court's jurisdiction which are apparent on the face of the record must be noted by this Court sua sponte. Mansfield C. & L. M. Railway Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462; Clark v. Paul Gray, Inc., 306 U.S. 583, 588, 59 S.Ct. 744, 83 L.Ed. 1001; Fennell v. John Hancock Mutual Life Ins. Co., 5 Cir., 177 F.2d 737, 738; Riley v. Titus, 89 U.S. App.D.C. 79, 190 F.2d 653, 655. On the day of the oral argument counsel were advised of this Court's doubts as to the jurisdiction of the District Court, and both parties have now furnished briefs on the subject.
The complaint is substantially copied in the footnote.1 Jurisdiction of the District Court was claimed on the sole basis that the action arises under the patent laws.2 We think that what was said in the early case of Wilson v. Sandford, 10 How. 99, 51 U.S. 99, 101, 13 L.Ed. 344, holds true here: 3 The action does not depend upon the construction or application of 35 U.S.C.A. § 47,* relating to the assignment of patents and applications.4 The primary and controlling purpose of the complaint was to secure an interpretation of the assignment, plaintiff's Exhibit A. The prayers for injunction and for damages as to any infringement are conditioned on securing an interpretation of the assignment favorable to the plaintiff. Questions under the patent laws may arise in the course of the litigation, but this is not a case arising under those laws.5
The Federal Declaratory Judgments Act, 28 U.S.C.A. §§ 2201, 2202, created a new remedy, but did not enlarge federal jurisdiction.6 In Milwaukee Gas Specialty Co. v. Mercoid Corp., 7 Cir., 104 F.2d 589, 592, relied on by appellee, it was said:
"We are of the opinion, therefore, that a petition under the Declaratory Judgment Act seeking the judgment of the court whether the respondent\'s patent was valid, and, if so, whether it was infringed by petitioner is a suit under the patent laws, and that the district court in the Eastern District of Wisconsin had jurisdiction."
That is a typical illustration of a case already within the jurisdiction of the district court in which declaratory judgment might be used as a remedy, and is very different from the present case where the disputed issue is not the validity of the patent but the interpretation of a collateral contract.
The judgment is, therefore, vacated and the cause remanded with directions to dismiss the complaint. See 28 U.S. C.A. § 2106.
Vacated and remanded with directions.
1 is a Florida corporation with its principal place of business in Dade County, Florida, and the defendant is a resident of the Southern district of Florida. The amount involved in this controversy exceeds the sum of $3,000.00, exclusive of costs and interest, and jurisdiction is conferred by Tit. 28 U.S.C.A. Sec. 1338.
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