102
Opinion of the Court
the alleged infringer and the public; it also may unfairly deprive the patentee itself of the appellate review that is a component of the one full and fair opportunity to have the validity issue adjudicated correctly. If, following a finding of noninfringement, a declaratory judgment on validity is routinely vacated, whether it invalidated the patent (as in Vieau) or upheld it (as in Fonar), the patentee may have lost the practical value of a patent that should be enforceable against different infringing devices. The Federal Circuit's practice denies the patentee such appellate review, prolongs the life of invalid patents, encourages endless litigation (or at least uncertainty) over the validity of outstanding patents, and thereby vitiates the rule announced in Blonder-Tongue.25
In rejecting the Federal Circuit's practice we acknowledge that factors in an unusual case might justify that court's refusal to reach the merits of a validity determination—a determination which it might therefore be appropriate to vacate. A finding of noninfringment alone, however, does not justify such a result. Nor does anything else in the record of this case. The two patents at issue here have been the subject of three separate lawsuits, and both parties have
25 The Federal Circuit's practice has been the subject of a good deal of scholarly comment, all of which has consistently criticized the practice. See R. Harmon, Patents and The Federal Circuit 551-554 (2d ed. 1991); Wegner, Morton, The Dual Loser Patentee: Frustrating Blonder-Tongue, 74 J. Pat. & Tm. Off. Soc. 344 (1992) ("A dual loser patentee at a trial court who fails both on infringement and validity and then loses at the Federal Circuit on infringement is given the judicial blessing of that appellate tribunal to sue and sue again against third parties, to the extent the invalidity ruling is vacated under Vieau"); Re & Rooklidge, Vacating Patent Invalidity Judgments Upon an Appellate Determination of Noninfringement, 72 J. Pat. & Tm. Off. Soc. 780 (1990). See also Donofrio, The Disposition of Unreviewable Judgments by the Federal Circuit, 73 J. Pat. & Tm. Off. Soc. 462, 464 (1991) ("[T]he Federal Circuit's present practice of vacating such judgments [even if it correctly considers them unreviewable] should not continue because it permits litigants to destroy the conclusiveness of invalidity holdings").
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