(specially concurring) .
The three occasions upon which this litigation has come before us has found me in accord with the decision of the court. When the judgment is entered in the instant case, there shall have been rendered in the current litigation three unmodified judgments in each of which the right, question or fact involved was distinctly put in issue and directly determined by the court as a ground of recovery-.
*495The effect of the judgment in the present case is to deprive the inventor Josserand of his patent and thereby cause his invention to revert to the public domain for the unrestricted use of anyone who may care to employ it.1
In the orderly course of procedure, and in the public interest, this prolific litigation should 'be brought to a final conclusion when the court, pursuant to R.S. § 4914, 35 U.S.C.A. § 62, “shall return to the commissioner a certificate of its proceedings and decision, which shall be entered of record in the Patent Office, and shall govern the further proceedings in the case.” This court and other federal courts, however, as well as the tribunals of the Patent Office, are nevertheless confronted with the definite prospect of continuous, voluminous, and repetitious litigation.
That situation has been fostered by the action of Assistant Commissioner of Patents, Murphy, sitting in judgment as the Commissioner of Patents, whereby he has attempted to overrule and set aside the prior judgment of this court2 which explicitly held that the evidence submitted there wholly failed to' establish that appellant • had committed a fraud upon the court, or committed any fraud whatsoever, as to any material issue in the prior interference proceeding which would warrant either the court or the tribunals of the Patent Office to reopen the previous interference 3 on the ground of alleged fraud on the part of appellant.
A copy of Taylor’s petition to strike appellant’s patent application from the records of the Patent Office, and appellant’s opposition thereto, are reported in the documents before the court, together with the commissioner’s resultant order to show cause why that should not be done. Those papers disclose the commissioner was confronted with the prior decision of this court, involving the issue of Josser- and’s alleged fraud, and that the commissioner issued his order with full knowledge of precisely what this court had previously decided.
The commissioner was governed by the judgment of our court, whether or not he had been an actual party to the proceedings upon which that judgment was rendered.4 That judgment was res judicata not only as to Taylor, a party to the prior action, but also as to the Commissioner of Patents and the tribunals of the Patent Office.5
Res judicata seeks to bring litigation to an end and promote certainty in legal relations.6 “Its enforcement,” as defined in Southern Pacific Railroad Company v. United States, 168 U.S. 1, 49, 18 S.Ct. 18, 27, 42 L.Ed. 355, “is essential to the maintenance of social order; for the ’aid of judicial tribunals would not be invoked * * * if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue, and actually determined by them.” See also Commissioner of Internal Rev. v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898.
Whenever the judgment in the former suit remains unmodified, that judgment is effective as an estoppel on the points decided there, whether the judgment was *496right or wrong.7 Moreover, R.S. § 4914, as hereinbefore described, specifically provides that the proceedings and decision of this court shall be entered of record in the Patent Office, and shall govern the further proceedings in the case.
Res judicata in the instant case has been successfully invoked by the Solicitor for the Patent Office against the appellant with respect to our judgment in the first of the three cases. By the same- authorities upon which the solicitor relied, the Patent Office was likewise bound by the judgment of this court in the second of the three cases. As correctly stated in Re Marconi, 38 App.D.C. 286, 293, with respect to the operation of res judicata, or estoppel by former judgment: “There should be an end to litigation in the Patent Office as elsewhere, and the principle of res judicata is applied therein to its full extent.” 8
Appellant has here submitted four valid reasons of appeal directed to the issue, for example, that
“21. The Patent Office erred in placing the Appellant Josserand herein under an order to show cause, returnable September 6, 1949, as to why the Josserand application for patent involved in this ex parte appeal should not 'be stricken from the Patent Office files for alleged fraud in the Interference and Public Use Records, which records are the same as those considered heretofore by this Court which found that such record ‘wholly fails to establish * * * that any fraud was committed by Appellant Josserand as to any material issue in that proceeding.’
“22. The Patent Office by the Assistant Commissioner Murphy erred in usurping the jurisdiction of this Court in an attempt to re-open the question of alleged fraud which this Court had previously disposed of in a petition to this Court to reopen which was based on the self-same record as 'between the same parties.”
Res judicata as usually applied bars subsequent consideration not only of those matters which were distinctly put in issue and directly determined but also of those matters which could have been raised and determined in the prior action. Because of the public interest, however, res judicata, or estoppel by former judgment, operates against the Commissioner of Patents, and his tribunals of the Patent Office, only as to the point dr issues actually litigated and determined, and not as to other matters which might have been so litigated and determined.9
The action of the commissioner in setting aside our judgment in the second case, and with the view of reopening our judgment in the first case, appears to have been nowise based upon the public interest. If the judgment in the first case, awarding priority of invention to Josserand, is also to be set aside by the commissioner when the instant case reverts to the Patent Office, thereby restoring its jurisdiction, additional litigation stands to be instituted with the view of taking the invention from the public and restoring it to Taylor as the original inventor.
The Government service has not been totally devoid of those who considered themselves above the law and the courts which construe and enforce it. Such administrators, on occasion, have exceeded their authority10 or have slept on the job when the predominant rights of the public should have been vigorously asserted.11 The Supreme Court has recently curbed *497one such agency which considered that because it had a certain guardianship of the public interest, it was at liberty to disregard and override the rule of res judicata which is of universal application.12
Volume 30, American Jurisprudence, sec. 174, reads: “In the application of the doctrine of res adjudicata if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts of evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action.”
On the same issue, and in the same publication, see sections 175, 176, and 178. See also 34 Corpus Juris, 743, 744 ; 88 A.L.R. 575; Bittner et al. v. West Virginia-Pittsburgh Coal Co., 4 Cir., 15 F.2d 652, 655.
There is no question that had appellant elected to proceed under R.S. § 4911, 35 U.S.C.A. § 59a, by way of remedy in a court of equity, with respect to the ancillary issue presented by appellant’s reasons of appeal hereinbefore described, a writ of mandamus could be there petitioned for to compel the commissioner to vacate the proceedings affecting the appellant’s rights under our previous judgment in the second case.13 The Solicitor for the Patent Office contends, however, that: “The appellant appears to be requesting the Court to set aside the action of the Commissioner in calling upon the appellant to show cause why his application should not be stricken from the files because of fraud. It is respectfully submitted that this Court has no jurisdiction in that matter, first because its jurisdiction in patent cases is limited to review of decisions by the Board of Appeals and secondly because no final action has been taken by the Commissioner. If the appellant feels that the Commissioner has acted outside his authority his remedy is by petition to the United States District Court for a mandatory injunction.”
The solicitor, it is noted, has cited no authority whatever in support of his contention. On the other hand, appellant properly contends in his brief that one of the ways to plead res judicata is, as he has done here, by way of affirmative defense in an action at law, such as we have here, and not by injunction or mandamus in the original proceeding, citing Pioneer Pyramid Life Ins. Co. v. Hughey, 4 Cir., 76 F.2d 524, 526, to the following effect:
“An estoppel based upon the principle of res judicata is asserted, not by injunction in the original cause, but by defensive pleading in the action to which the defense is applicable. 15 R.C.L. 1045. And it is well settled that where the remedy at law is plain, adequate, and complete, resort to equity is not permissible. 28 U.S.C.A. § 384; Enelow v. N[ew] Y[ork] Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440. * * *”
Volume 34, Corpus Juris, 749, also states: “While the doctrine of res judicata is usually regarded as a defense, it is equally available to plaintiff where the circumstances warrant it, either by pleading it as an element of his cause of action or in reply to defendant’s answer, * * * or, where no opportunity for this is afforded, by introducing evidence of the former adjudication”.
It would appear therefore that the contention of the Solicitor for the Patent Office must be taken with a grain of salt. In any event, the court of its own motion may raise the question of res judicata, *498which goes to the jurisdiction of the court, at any stage of the proceedings.14
Moreover, there can be no question that this court has inherent power to issue a citation for contempt with respect to the deliberate violation of the judgment of the court on the part of a subordinate official, nor can the court’s inherent right be challenged to issue a mandate directing that such official withdraw a pending order made by him invalidating a prior judgment of the court in the current litigation, so long as the court retains control of the subject matter and of the parties.
In the final disposition of the instant case, the court should issue an order so as to relieve appellant of the necessity of resorting to all the technical apparatus of procedure, with which the court and litigants are familiar, so as to correct an anomalous and unjust situation in the Patent Office, which the court has learned .from the record exists there in connection with the present litigation. That procedure will be a short cut to justice, and put an end to this prolific litigation.
. Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 8 S.Ct. 122, 31 L.Ed. 141; In re Bertram, 88 F.2d 834, 24 C.C.P.A., Patents, 1073; Union Carbide Co. v. American Carbide Co., C.C., 172 F. 120.
. Josserand v. Taylor, 159 F.2d 249, 34 C.C.P.A., Patents 824.
. Josserand v. Taylor, 138 F.2d 58, 31 C.C.P.A., Patents, 709.
. In re Drawbaugh, 9 App.D.C. 219; Plough, Inc., v. Intercity Oil Co., D.C., 26 F.Supp. 978; Coca-Cola Co. v. Santa Cola Co., 85 U.S.P.Q. 426.
. Winkelmann v. Calvert, 154 F.2d 1012, 33 C.C.P.A., Patents, 1206; In re Shimer, 69 F.2d 556 ; 21 C.C.P.A., Patents, 979; In re Marconi, 38 App.D.C. 286, 293; Blackford v. Wilder, 28 App.D.C. 535; Daniels v. Coe, 73 App.D.C. 54, 116 F.2d 941; Hemphill Co. v. Coe, 74 App.D.C. 123, 121 F.2d 897.
. United States v. Munsingwear, Inc., 340 U.S. 36, 38, 71 S.Ct. 104.
. Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054; United States v. Boone, 188 F.2d 808, 38 C.C.P.A., Customs, 89, decided Feb. 6, 1951.
. To the same effect see Lavin v. Pierotti, 129 F.2d 883, 29 C.C.P.A., Patents, 1235.
. Krasnow et al. v. Bender, 170 F.2d 560, 36 C.C.P.A., Patents, 723, 728; Blackford v. Wilder, 28 App.D.C. 535.
. McCoy v. Pfeiffer, 133 F.2d 913, 30 C.C.P.A., Patents, 853.
. The tribunals of the Patent Office could have rejected the appellant’s application, ex parte, and without reference to the issues raised by the parties, upon the evidence produced before them in the original interference proceeding, which was the same then as it is here. Heuberger *497v. Becker, 107 F.2d 601, 27 C.C.P.A., Patents, 746; Derby et al. v. Whitworth, 62 F.2d 368, 20 C.C.P.A., Patents, 791; In re Bertram, 88 F.2d 834, 24 C.C.P.A., Patents, 1073; Burmel Handkerchief Corp. v. Cluett, Peabody & Co., Inc., 127 F.2d 318, 29 C.C.P.A., Patents, 1024.
. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, affirming, 8 Cir., 178 F.2d 204.
. United States ex rel. Newcomb Motor Co. v. Moore, 30 App.D.C. 464, 476.
. Northern Pacific Railroad Co. v. Ellis, 144 U.S. 458, 464, 12 S.Ct. 724, 36 L.Ed. 504; Macleay Duff (Distillers), Ltd. v. Frankfort Distilleries, Inc., 129 F.2d 695, 29 C.C.P.A., Patents, 1160.