of appeals, appeared to demonstrate conclusively that the machine not only works without the cutting knife, but produces a highly useful result if the pears are split before being placed in the machine for bobbing, peeling, and coring. Whatever foundation might have been found, therefore, to support the conclusion of intent to fence or block, in the machine's lack of capacity to produce any useful result, disappears from the case. The record, however, discloses another ground which was considered in the Patent Office and the district court, wholly sufficient to dispose of the case and requiring affirmance of the judgment. This was that the claims in issue are too broad to cover the invention. No one of the claims specifies or indicates that the pears must be pre-split in order for the invention to be used or to produce a useful result. With commendable candor, counsel conceded this in the argument here, and indeed the claims on their face require the concession. Patents are not to be granted upon claims which do not accurately describe the invention and all of its essential.features. These claims are stated in language broad enough to include whole pears. Admittedly the machine will not work, without the knife, as to them. In my judgment therefore the claims are too broad. The Patent Office and the district court so found. The question is open and was presented in the court of appeals and here. Accordingly I would affirm the judgment. [Supreme Court of the United States] COFFMAN V. FEDERAL LABORATORIES, INC., AND THE UNITED STATES No. 485. Decided January 2, 1945 575 O. G. 3; 323 U. S. 325; 64 USPQ 6 1. DISTRICT COURT-RELIEF. Where a suit was brought in the district court by appellant against appellee, Federal, and another, to secure an adjudication of the constitutional validity of the Royalty Adjustment Act, and to enjoin defendants from paying into the Treasury royalties alleged to be due upon certain license agreements, as required by orders of the War and Navy Departments served upon appellant and the defendants pursuant to the act; and the bill of complaint additionally alleged that defendants owed royalties to appellant under the agreements, and prayed an accounting; and appellant set up the unconstitutionality of the act by way of anticipation of the defense that the act and orders required appellee to pay the royalties into the Treasury, Held that appellant had shown no ground for equitable relief by way of injunction; that the allegations of unconstitutionality of the act and orders were pleaded only as supporting the prayer for an injunction and were properly stricken with that prayer; and that the allegations were not essential to or a proper part of the cause of action for an accounting and recovery of the royalties alleged to be due. 2. SAME-SAME. "Since the allegations were striken, appellee Federal has answered setting up as a separate defense the royalty adjustment orders prohibiting payment of the royalties to appellant. Upon that issue appellant will be free to contest the constitutional validity of the orders." APPEAL from the District Court of the United States for the Western District of Pennsylvania. Affirmed. Mr. James D. Carpenter, Jr., and Mr. John G. Buchanan (Mr. William H. Eckert on the brief) for Coffman. Mr. Francis M. Shea (Mr. Charles Fahy, Mr. Paul A. Freund, Mr. David L Kreeger, and Mr. Jerome H. Simonds on the brief) for appellee United States. No appearance for appellee Federal Laboratories, Inc. Mr. Chief Justice STONE delivered the opinion of the Court. This is a companion case to No. 71, Coffman v. Breeze Corporations, Inc., and the United States, decided this day. [1] Like that case the present suit was brought by appellant against Federal Laboratories, Inc., and Breeze Corporations, Inc., to secure among other things an adjudication of the constitutional validity of the Royalty Adjustment Act of Congress of October 31, 1942, 56 Stat. 1013, 35 U. S. C. Supp. III, §§ 89-96. It sought also to enjoin defendants from paying over to the Treasury of the United States royalties alleged to be due upon the license agreements involved in the Breeze suit, as required by the notices and orders of the War and Navy Departments served upon appellant and the defendants pursuant to the act. In addition, the bill of complaint alleges that defendants owe royalties to appellant under the license agreements, for which it prays an accounting. By way of anticipation of the defense that the Royalty Adjustment Act and the notices and orders of the War and Navy Departments require appellee to pay the royalties into the Treasury, appellant sets up the unconstitutionality of the act. A district court of three judges was convened to hear the cause as required by the Act of August 24, 1937, 50 Stat. 752, 28 U. S. C. § 380 (a), and the United States was allowed to intervene as a party in accordance with § 1 of the act. 50 Stat. 751, 28 U. S. C. § 401. The district court, on motion of the Government, dismissed so much of the bill of complaint as sought an adjudication of the constitutional validity of the Royalty Adjustment Act and of the notice and orders issued under it. It struck from the bill of complaint the anticipatory allegations that the Royalty Adjustment Act and the orders with respect to the royalties owing appellant are unconstitutional and void, and it struck the prayer of the bill for an injunction. For the reasons stated in our opinion in the Breeze case we hold that appellant has shown no ground for equitable relief by way of injunction. The allegations of unconstitutionality of the Royalty Adjustment Act and the orders were pleaded only as supporting the prayer for an injunction and were therefore properly stricken with that prayer. The allegations are not essential to or a proper part of the cause of action for an accounting and recovery of the royalties alleged to be due. [2] Since the allegations were stricken, appellee Federal has answered setting up as a separate defense the royalty adjustment orders prohibiting payment of the royalties to appellant. Upon that issue appellant will be free to contest the constitutional validity of the orders. The judgment below is accordingly affirmed. [Supreme Court of the United States] MCCULLOUGH v. KAMMERER CORPORATION ET AL. No. 46. Decided January 2, 1945 575 O. G. 203; 323 U. S. 327; 64 USPQ 7 CERTIORARI DISMISSAL OF WRIT. Where the only question for which certiorari was granted was one not properly raised, litigated or passed upon below, and the grounds asserted for the allowance of certiorari were inadequately supported by the record, Held that the writ would be dismissed. ON WRIT of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. Dismissed. Mr. A. W. Boyken (Mr. R. Welton Whann, Mr. Robert M. McManigal, and Messrs. Boyken, Mohler & Beckley on the brief) for McCullough. Mr. Leonard S. Lyon (Mr. Frederick S. Lyon on the brief) for Kammerer Corporation et al. Mr. Charles Fahy and Mr. Wendell Berge filed brief on behalf of the United States as amicus curiae. PER CURIAM: In this case both the district court and the Circuit Court of Appeals for the Ninth Circuit have held valid and infringed the Reilly and Stone patent, No. 1,625,391, of April 19, 1927, for a pipe cutting tool, of which patent respondent Kammerer Corporation is assignee. The patent expired on April 18, 1944, only damage for infringement is involved, and there is no conflict of decision with respect to the patent. This Court granted certiorari only because the petition for certiorari presented as a ground of defense to the suit, that respondent Kammerer Corporation had licensed to respondent Baash-Ross Tool Company the use of the patented device in suit, by an agreement which stipulated for restrictions on such use which are asserted to be unauthorized by the patent monopoly, contrary to public policy, and unlawful. On oral argument and submission of the cause it appears that although petitioner by its amended answer alleged generally that re 654637-46- -38 spondents "do not come into court with clean hands," the answer made no mention of the restrictions contained in the license agreement. The district court made no findings of fact or law with respect to them. On appeal to the circuit court of appeals petitioner assigned no error with reference to them and the circuit court of appeals did not consider them, saying: "We affirm the judgments of the district court, considering here only the appellant's claim of error." 133 F. (2d) 482. Thus the only question for which we granted certiorari is one not properly raised, litigated or passed upon below. Duignan v. United States, 274 U. S. 195, 200; Burnet v. Commonwealth Improvement Co., 287 U. S. 415, 418; Zellerbach Paper Co. v. Helvering, 293 U. S. 172, 182; United States v. Classic, 313 U. S. 299, 329. The grounds asserted for the allowance of certiorari are inadequately supported by the record, and the writ is therefore dismissed. [Supreme Court of the United States] COFFMAN V. BREEZE CORPORATIONS, INC., AND THE UNITED STATES No. 71. Decided January 2, 1945 575 O. G. 387; 323 U. S. 316; 64 USPQ 1 1. DISTRICT COURT-ASSEMBLY OF THREE JUDGES-CONSTITUTIONAL QUESTION. The case at bar being one in which the constitutionality of an act of Congress was challenged and in which a preliminary and final injunction was asked restraining "the enforcement, operation, or execution of, or setting aside in whole or in part" of an act of Congress on the ground of its unconstitutionality, Held that a district court of three judges was rightly convened to hear the cause pursuant to § 3 of the Act of August 24, 1937, 50 Stat. 752, 28 U. S. C. § 380 (a), although the suit was brought against private parties not public officers. 2. SAME-RELIEF. The suit by appellant, a patent owner, against a licensee, Federal, and appellee, Breeze, which had been engaged under contract by Federal as its exclusive "sales agent and distributor” to manufacture and sell the patented device, wherein appellant sought only an adjudication that the Royalty Adjustment Act of October 31, 1942, 56 Stat. 1013, 35 U. S. C. Supp. III, §§ 89-96, and the orders purporting to have been made in conformity to it by the War and Navy Departments were unconstitutional as applied to appellant, and asked an injunction restraining Breeze and Federal from complying with the act and the orders by paying any part of the royalties allegedly due to appellant into the Treasury or to any person other than appellant, Held to have been rightly dismissed by the district court for want of equity jurisdiction and for want of a justiciable case or controversy. 3. SAME-SAME. "The obligation to pay royalties * appears to be no more than a debt. There is no contention that it is a fiduciary obligation to turn an earmarked fund over to appellant. The complaint does not indicate that if appellee is not enjoined it will pay the royalties into the Treasury, or, if it does, that appellee will be unable to respond to a judgment in appellant's favor. Apellant thus fails to assert any right of recovery at law in the present suit or to show that its remedy available at law is so inadequate as to entitle it to ask an equitable remedy." 4. SAME-SAME-DECLARATORY JUDGMENT. "So far as the present suit seeks a declaratory judgment, or an injunction restraining payment of the royalties into the Treasury, it raises no justiciable issue. Appellant asserts in the present suit no right to recover the royalties. It asks only a determination that the Royalty Adjustment Act is unconstitutional and, if so found, that compliance with the act be enjoined, an issue which appellee by its answer declines to contest. If contested the validity of the act would be an issue which, so far as it could ever become material, would properly arise only in a suit to recover the royalties, where it could be appropriately decided." 5. SAME-SAME-SAME. The declaratory judgment procedure is available in the federal courts only in cases involving an actual case or controversy, where the issue is actual and adversary, and it may not be made the medium for securing an advisory opinion in a controversy which has not arisen. 6. SUPREME COURT-CONSTITUTIONAL QUESTION. The Supreme Court will not pass upon the constitutionality of legislation in a suit which is not adversary, or upon the complaint of one who fails to show that he is injured by its operation, or until it is necessary to do so to preserve the right of the parties. APPEAL from the District Court of the United States for the District of New Jersey. Affirmed. Mr. James D. Carpenter, Jr., and Mr. John G. Buchanan (Mr. William H. Eckert on the brief) for Coffman. Mr. Francis M. Shea (Mr. Charles Fahy, Mr. Paul A. Freund, Mr. David L. Kreeger, and Mr. Jerome H. Simonds on the brief) for appellee United States. No appearance for appellee Breeze Corporations, Inc. Mr. Chief Justice STONE delivered the opinion of the Court. The question is whether this suit, brought in the district court by appellant, a patent owner, to enjoin its licensees from paying accrued royalties to the Government under the Royalty Adjustment Act of ⚫ October 31, 1942, 56 Stat. 1013, 35 U. S. C. Supp. III, §§ 89-96, and attacking the constitutionality of the act, was rightly dismissed for want of equity jurisdiction and for want of a justiciable case or controversy. [1] Appellant brought the present suit in the district court for New Jersey, joining as defendants Federal Laboratories, Inc., a Delaware corporation, and appellee Breeze Corporations, Inc., a New Jersey corporation. Federal was not served with process and did not appear, and the cause has proceeded against appellee Breeze alone. The case being one in which the constitutionality of an act of Congress is challenged and in which a preliminary and final injunction is asked restraining "the enforcement, operation, or execution of, or |