836
CIRCULATION SYSTEMS, INC. Opinion of Stevens, J.
Machine Tool Works, Oerlikon-Buehrle Ltd., 895 F. 2d 736, 742-743 (CA Fed. 1990) (en banc) (opinion of Markey, C. J., for a unanimous court) (citing, e. g., Rengo Co. v. Molins Machine Co., 657 F. 2d 535, 539 (CA3 1981); Dale Electronics, Inc. v. R. C. L. Electronics, Inc., 488 F. 2d 382, 390 (CA1 1973); Pioche Mines Consol., Inc. v. Fidelity-Philadelphia Trust Co., 206 F. 2d 336, 336-337 (CA9 1953); Lion Mfg. Corp. v. Chicago Flexible Shaft Co., 106 F. 2d 930, 933 (CA7 1939)).1 I am nevertheless persuaded that a correct interpretation of § 1295(a)(1) limits the Federal Circuit's exclusive jurisdiction to those cases in which the patent claim is alleged in either the original complaint or an amended pleading filed by the
1 The Court dismisses the cases cited in Aerojet, a unanimous opinion for an en banc Federal Circuit, as having "no bearing" on this case because they do not parse the term "arising under" or interpret 28 U. S. C. § 1295(a)(1). Ante, at 834, n. 4. But surely it is not a "quibbl[e]" to acknowledge them as supporting the Aerojet court's conclusion that the jurisdiction of the district court can be based on a patent counterclaim, thereby satisfying the "in whole or in part" requirement of § 1295(a)(1).
In any event, the assertion that only the power of black magic could give "arising under" a different meaning with respect to appellate jurisdiction is belied by case law involving the Temporary Emergency Court of Appeals (TECA), which had exclusive jurisdiction over appeals in cases "arising under" the Economic Stabilization Act of 1970 (ESA), § 211(b)(2), 85 Stat. 749. Most courts departed from the traditional understanding of "arising under" and interpreted the statute to grant TECA appellate jurisdiction over ESA issues, including those raised as a defense. Courts nevertheless interpreted the statute's identical language respecting the district courts to grant traditional "arising under" jurisdiction. See Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F. 2d 179, 185-186 (CA2 1979) ("It must be candidly recognized that according the TECA some form of 'issue' jurisdiction places on the phrase, 'cases and controversies arising under,' . . . a construction that differs from the meaning associated with these words in other jurisdictional statutes, and differs even from the grant of jurisdiction to the district courts in [the ESA]"). Thus, although I am in agreement with the Court's ultimate decision not to determine appellate jurisdiction by reference to the defend-ant's patent counterclaim, I find it unnecessary and inappropriate to slight the contrary reasoning of the Court of Appeals.
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