concurring in the judgment.
By failing to argue before the Supreme Court in support of this court’s judgment vacating the district court’s holding of patent invalidity, Morton may not now relitigate the issue. Morton was awarded a vacatur of the district court’s invalidity determination in this court and thus had its patents restored to it whole. Instead of arguing to retain its revalidated patents, Morton took the improbable position of joining with Cardinal in asking the Supreme Court to reverse this court’s judgment. By siding with its adversary and declining to defend its win, Morton conceded that the patents are invalid. It is entitled to no further consideration here. For that reason I join the judgment.
At the end of the original proceeding in this court, Morton had won. It had its patents fully restored in the eyes of the law, although one judge did give his advisory opinion that the patents were invalid. When Morton declined to defend the judgment it had received, it gave away a 100% certain victory in the form, of a judgment that the patents were not invalid. In light of the concurring opinion, Morton knew that, at best, it had only a fifty-fifty chance of getting the same result if the case were remanded, and a concomitant fifty-fifty chance of losing altogether. As a matter of fact, however, as discussed below, it had no chance of prevailing on the merits; it traded a judgment revalidating the patents for one invalidating them. For a party to relinquish a sure win for a loss, or a coin toss at best, is a notion of advocacy new to me.
There is a real distinction between the opinion of a court and the judgment which it supports. A court may well render a “correct” judgment, but provide an inadequate or deficient opinion in support. On appeal, an appellee may urge affirmance of a judgment on any basis supported by the law or record, United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376 (1977), even if it contradicts the reasons stated in the opinion or was not even mentioned at all. Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 481, 96 S.Ct. 2158, 2159, 48 L.Ed.2d 784 (1976) (“ ‘the appellee may ... urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court-’ ” (quoting United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924))). Morton made absolutely no effort as appellee to defend the judgment it had achieved. The Vieau v. Japax, Inc., 823 F.2d 1510 (Fed.Cir.1987), concept of mootness, now expunged by the Supreme Court, did not exhaust the reasons the court might have thought supportive of vacatur. See Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. —, —, 113 S.Ct. 1967, 1978, 124 L.Ed.2d 1 (1993) (Scalia, J., concurring). Morton eschewed any such approach and argued for the complete reversal of its favorable judgment. The Supreme Court may have been sanguine about Morton’s posture so that it could get to the “question presented,” but it naturally did not address the concession of Morton’s judgment because the entire orchestra was playing from the same sheet. See id. at —, —, 113 S.Ct. at 1971 n. 9, 1979. Morton might have scuttled Vieau and saved its patents as well if it had not joined the orchestra.
It is a simple reality that the issue of patent validity is not monolithic, but is composed of a number of doctrines. A patent, though presumed valid, 35 U.S.C. § 282 (1988), is actually a fragile entity, and must be propped up by a myriad of supports, each representative of one of the legal requirements of validity. If even a single one of these supports is removed, the patent will fall. For example, a patent may be declared invalid if it fails to contain an enabling diselo-*1472sure, see id. § 112 ¶ 1; if it fails to particularly set out and distinctly claim the subject matter the applicant regarded as his invention, see id. § 112 ¶2; if it is found to be anticipated by a prior art reference, see id. § 102; if it is rendered obvious by a combination of the prior art, see id. § 103; or if it fails to satisfy any one of a variety of other conditions.
With so many supports to choose from, and the complexity of the legal questions and proofs often encountered, it happens that a patent might be declared invalid on a number of alternative grounds. On appeal, before this court affirms the invalidity of a patent, it strikes me as only prudent that at least two members of the panel not only agree that the patent is invalid, but that it is invalid for the same reason. In the original consideration of this case, because a majority of the panel disagreed on the ground upon which to affirm the invalidity determination, we agreed to vacate the invalidity determination which was not necessary to the judgment. The then extant Vieau rationale offered a convenient mechanism. To me, it is entirely unsatisfactory to invalidate a patent for a reason. sufficient to only one judge, especially when invalidation must be based on clear and convincing evidence. See Buildex, Inc. v. Kason Industries, Inc., 849 F.2d 1461, 1463 (Fed.Cir.1988).
Until now, there were only valid patents (as all are presumed to be) and invalid patents (those that have been proved invalid by clear and convincing evidence, and can no longer be considered patents at all). This case gives rise td a third species: the “wounded” patent. By our earlier action of vacating the district court’s judgment, the patents were revived, with one judge stating his belief that they were invalid. Morton argued that, contrary to what the law may say about the presumption of validity, the patents were not fully revived because the marketplace would ignore the presumption and view them- with a “jaundiced eye.” 508 U.S. at —, 113 S.Ct. at 1971. Even if, on this remand, we had ruled that the patents are not invalid, they would still be as wounded as before if, as expected, the concurring judge adhered to his original view.' Indeed, they would be even more wounded, because there would now be at least two judges (the district judge and one here) who have expressed the opinion that they are invalid. A patent is never declared “valid” but only “not invalid” on the particular record. See Panduit Corp. v. Dennison Manufacturing Co., 810 F.2d 1561, 1569 (Fed.Cir.1987); Stevenson v. Sears, Roebuck & Co., 713 F.2d 705, 707 (Fed.Cir.1983). Accordingly, I see no reason why, if Morton were to bring a subsequent suit, an alleged infringer could not just as readily raise arguments challenging validity and defend a charge of willful infringement, based on'the district court’s and the Federal Circuit judge’s opinions, as it could have had the original vacatur remained.
Every year about 100,000 new patents are issued, resulting in well over 1,000,000 patents in force in this country at any time. See 39 Pat. Trademark & Copyright J. (BNA) 178 (January 4, 1990); 41 Pat. Trademark & Copyright J. (BNA) 350 (February 21, 1991); 43 Pat. Trademark & Copyright J. (BNA) 366 (February 27, 1992). These patents are issued by the Patent and Trademark Office clothed in a presumption of validity as a matter of law and of practicality. The Patent and Trademark. Office, after all, consumes a tremendous annual budget, nearly a half billion dollars, and employs thousands of highly trained individuals working to insure that only deserving patents are issued. This court, on the other hand, might see only one hundred and fifty or so contested patents a year, including repeaters. We therefore see at most no more than 0.015% of the patents in force. This hardly seems to justify the Supreme Court’s solicitude toward holders or opponents of wounded patents sufficient to deprive this court of its discretion in addressing this handful of cases, see 508 U.S. at —, 113 S.Ct. at 1977-78, and distorting the law as well. Indeed, in light of the legal, financial and personnel commitments sketched out above, I would think it a more reasonable rule to require routine resurrection of invalidated patents in these circumstances, absent overwhelming reasons to take another course. The Supreme Court’s opposite tack has the tenor and tone of “trust busting,” and exalts the results of litigation and its attendant vagaries over the studied *1473investment of resources in the administrative process. With respect, I believe this is back-wards.
The jurisdiction of this court is made up of discrete and disparate disciplines. The dis-parateness helps the court maintain its independence, but the discreteness facilitates the ability of common interest groups to organize and bring them views to bear. This case is an illustration. I would hope in the future the Supreme Court will be sensitive to the uniqueness of this court’s position in the system. If it is again faced with a writ of certiorari that resembles a campaign more than an appeal, and it chooses not to dismiss the writ as improvidently granted, perhaps the Court will consider appointing counsel to defend the judgment, for effect if nothing else.