88
Opinion of the Court
to an affirmance of the invalidity holding "so that they can plan their future affairs accordingly." Id., at 954.
Both parties then filed petitions for rehearing, arguing that the court should have decided the validity issue instead of vacating the District Court's declaratory judgment; 7 they also filed suggestions for rehearing en banc, urging the Court of Appeals to reconsider its post-1987 practice of routinely vacating a declaratory judgment of invalidity whenever noninfringement is found. Over the dissent of three of its judges, the court declined those suggestions.8 Chief Judge Nies filed a thorough explanation of that dissent; she found no "justification for our Vieau decision either legally or as a 'policy'. . . . The parties can now look only to the Supreme Court for correction." 967 F. 2d 1571, 1578 (CA Fed. 1992).
Cardinal filed a petition for certiorari asserting that the Federal Circuit errs in applying a per se rule to what should be a discretionary matter. Pet. for Cert. 13. Morton did not oppose the grant of certiorari, but instead pointed out that it also had an interest in having the validity issue adjudicated.9 It explained that, after the Federal Circuit had
7 Those petitions were denied. 1992 U. S. App. LEXIS 7580 (CA Fed. 1992), App. to Pet. for Cert. 71a, 72a.
8 1992 U. S. App. LEXIS 10067 (CA Fed. 1992), App. to Pet. for Cert. 73a, 74a.
9 Because both parties agree that we should reject the Federal Circuit's practice, it might be thought that they lack the adversarial posture required by Article III. Although both Morton and Cardinal do agree on the correct answer to the question presented, they do so only so that they can reach their true dispute: the validity of Morton's two patents, a subject on which they are in absolute disagreement. Further, it is clear that no collusion between the parties has brought them here; if anything has dulled the adverseness between them, it is the Federal Circuit practice that is the subject of this case. Cf. INS v. Chadha, 462 U. S. 919, 939 (1983) (finding Art. III adverseness even though the two parties agreed on the unconstitutionality of the one-House veto that was the subject of that case; the parties remained in disagreement over the underlying issue
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