Blossfeld

This is a suit by a patentee for royalties under a written contract permitting defendant the use of United States letters patent No. 1,450,060. A motion to dismiss the complaint, as not within our jurisdiction, already has been denied, and the matter is again before the *890 court on defendant’s motion, suggesting that there is no right to proceed.

Plaintiff argues that the earlier ruling has become the law of the case, and that it therefore may not be set aside. Were not the jurisdiction of the court in question, this must have been conceded. Commercial Union of America, Inc., v. Anglo-South American Bank, Limited (C. C. A. 2) 10 F.(2d) 937 . But in a leading case upon the subject the following language is quoted: “The principle established in all jurisdictions is that, so long as the facts remain the same, the rule of law once held by the court of last resort remains the rule throughout the subsequent history of the cause, in all its stages, except under extraordinary circumstances. * * * ” Commercial Union of America, Inc., v. Anglo-South American Bank, Ltd., supra. It would be not only an extraordinary but a useless thing to permit the trial of a case which, on the…