Cite as: 508 U. S. 83 (1993)
Opinion of Scalia, J.
urged the Federal Circuit to resolve their ongoing dispute over the issue of validity; it would be an abuse of discretion not to decide that question in this case. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Souter joins, concurring in part and concurring in the judgment.
I agree that the Federal Circuit erred in holding that the invalidity claim became moot once it was determined that the patent had not been infringed. Moreover, though the Federal Circuit had discretion to reach (or not to reach) respondent's appeal of the declaratory judgment ruling, it was an abuse of discretion to decline to reach it for that erroneous "mootness" reason—constituting, in effect, a failure to exercise any discretion at all. I therefore join the judgment of the Court, and all of its opinion except Part IV.
In Part IV the Court determines that, upon remand, the Federal Circuit may not, "on other grounds," ante, at 99 (emphasis added), continue its practice of declining review in these circumstances, set out in Vieau v. Japax, Inc., 823 F. 2d 1510 (1987). That point is much less tied to general principles of law with which I am familiar, and much more related to the peculiarities of patent litigation, with which I deal only sporadically. It need not be reached to decide this case, and I am unwilling to reach it because of the lack of adversary presentation.
The lack of adversariness was frankly acknowledged at oral argument. See, e. g., Tr. of Oral Arg. 25, 37 ("On the limited issue before this Court, where there is a declaratory judgment held, we do not have any difference whatsoever"). Petitioners and respondent disagree only as to some hypothetical applications of the Federal Circuit's reviewing authority—applications clearly outside the facts of this case—
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