Simmons Company v. A. Brandwein & Co., and the Seng Company, Intervenor-Defendant-Appellee

SCHNACKENBERG, Circuit Judge

(concurring).

I add two comments.

1. Having disposed of this appeal by holding that the district court was correct in adjudicating that plaintiff’s patent claims in suit are invalid, the issue as to infringement thereupon became moot. The latter issue is hypothetical, unless and until we are reversed on the question of validity by the United States Supreme Court, in which contingency we might have to pass upon the issue of infringement.

2. In concurring, my position is based upon the distinctions as to findings of fact and questions of law, arising in patent cases, as outlined in Noble Co. v. C. S. Johnson Co., 7 Cir., 241 F.2d 469, 475-476, where the controlling cases are cited.