Flakice Corp. v. Liquid Freeze Corp.

I have heretofore decided the issues raised by the complaint and answer but at that time postponed consideration of the counterclaim pending further argument.

My prior opinion, D.C., 130 F.Supp. 471 , disposed of the questions of validity and infringement of certain of the claims of the Short patent (No. 2,310,-468, dated February 9, 1943) and certain of the claims of the Raver patent (No. 2,308,541, dated January 19, 1943). The counterclaim asserting jurisdiction under the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201 , 2202, asks that I declare the remainder of the claims in both patents invalid and non-infringed. Jurisdiction

The defendant in support of jurisdiction under the Declaratory Judgment Act alleged that plaintiffs had threatened customers and that the plaintiffs had held out to the trade that defendant’s machine infringed. These allegations were not proven and defendant’s counsel in his opening statement said that they would not be.

It is fundamental that there must be a justiciable controversy as to the subject matter of the counterclaim before this Court has jurisdiction under the Declaratory Judgment Act. Altvater v. Freeman, 1943, 319 U.S. 359 , 63 S.Ct. 1115 ,…