(concurring).
I believe that Judge Lindley has correctly applied the law, in its existing state, to the case before us. While the counter-affidavit of Aghnides is defective, I believe that it is superfluous and that he is entitled under existing law to another day in court where he may re-litigate the same issue upon which he lost in the Goodrie case. The law does not require him to justify this indulgence. He is entitled to it because a suit testing the validity of a patent is not a proceeding in rem and hence Agh-nides may litigate and relitigate again and again the question of validity of his patent as long as he selects a different defendant in each of the infringement suits which he files, thus avoiding the wholesome doctrine of res adjudicata. This queer result is one which we are unable to avoid. It is a situation which is particularly abhorrent when considered against the backlog of untried cases which clogs our federal courts. The latter are cases where the litigant asks only for his day in court, not a plurality of days in court as Aghnides is entitled to under the existing law. The remedy lies not in our hands. The congress could by legislation grant relief.