90
Opinion of the Court
cases decided by different panels of that court on the same day. In Vieau, the patentee had appealed adverse rulings on damages, infringement, and validity and the alleged infringer had filed a cross-appeal asserting that the District Court should have declared the patent invalid. After affirming the District Court's finding of noninfringement, the Federal Circuit concluded:
"Our disposition on the issue of infringement renders moot the appeal of the propriety of a directed verdict on the issues of damages and willful infringement. There is no indication that Japax's cross-appeal on invalidity extends beyond the litigated claims or the accused devices found to be noninfringing. Accordingly, we also dismiss the cross-appeal as moot. The judgment entered by the district court with respect to each of the mooted issues is therefore vacated. It is affirmed with respect to infringement." 823 F. 2d, at 1517.
Judge Bennett filed a concurring opinion, fleshing out this perfunctory holding and explaining that there was no need to review the declaratory judgment of invalidity in the absence of any "continuing dispute (such as the presence or threat of further litigation) regarding other claims or other accused devices that remains unresolved by the finding of noninfringement." 10
In the second case, Fonar Corp. v. Johnson & Johnson, 821 F. 2d 627 (CA Fed. 1987), the District Court had held that the patent was not infringed and that the defendant-10 Vieau, 823 F. 2d, at 1520. He added: "It is the burden of the party seeking the declaratory judgment to illustrate, either in its briefs or at oral argument, the continued existence of a case or controversy should a decision of noninfringement be made by this court in deciding the appeal. See International Medical Prosthetics, 787 F. 2d at 575, 229 USPQ at 281 (burden is on declaratory plaintiff to establish that jurisdiction existed at, and has continued since, the time the complaint was filed). This requirement avoids having this court unnecessarily address what might turn out to be a hypothetical situation." Ibid.
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