Must

The sole question is whether or not this court has jurisdiction in this action for declaratory relief, 28 U.S.C.A. § 2201 , involving a dispute between an alleged infringer as plaintiff and an applicant for a patent as defendant.

While suits for declaratory relief by an alleged infringer against a holder of a patent are common, counsel have failed to cite, and independent research has failed to find, any case wherein jurisdiction is attempted to be justified in a suit by an alleged infringer against an applicant for a patent before the issuance of the patent.

The complaint is in three counts: the first two, while differing somewhat from *906 each other, are essentially for unfair competition; the third alleges that defendant has an application for a patent pending in the Patent Office, but asks this court to determine that the claims disclose no patentable invention.

The Declaratory Judgment Act, 28 U.S.C.A. § 2201 , confers no additional jurisdiction on federal district courts but merely adds a new procedural device. Atlantic Meat Co. v. R. F. C., 1 Cir., 1948, 166 F.2d 51, 56 ; Southern Pacific Co. v. McAdoo, 9 Cir., 1936, 82 F.2d 121, 122 .

If jurisdiction exists it is by…