joining as to Appeal No. 83-781 and concurring in result as to Appeal No. 83-720.
I agree with the majority opinion and the result in Appeal No. 83-781. I concur in the result in Appeal No. 83-720, but it is my opinion that the 35 U.S.C. § 291 issue, decided by the majority in that appeal, is not an issue of jurisdiction. Rather, the issue is whether Albert has established or failed to establish an essential element of his cause of action under 35 U.S.C. § 291 (1976).
I share Judge Davis’ view of 35 U.S.C. § 291 that jurisdiction in this case does not depend upon the actual existence of two interfering patents. Jurisdiction of the district court in an interfering patent suit depends on a good faith, non-frivolous and substantial assertion of the existence of interfering patents by the plaintiff, i.e., of a “civil action arising under any Act of Congress relating to patents,” 28 U.S.C. § 1338(a) (1976). Thus, the civil action alleged to exist arises under section 291, but jurisdiction over such civil actions is conferred on the district courts by section 1338(a). I fully agree with Judge Davis that the existence of interfering patents need not be determined in a preliminary trial and decision on that issue before jurisdiction is acquired.
Contrary to Kevex’s argument, the existence of an interference is not jurisdictional. While I agree with the majority, that interference between patents is a sine qua non of an action under section 291, the failure of a plaintiff to prove that element of his cause of action under section 291 does not deprive the court of jurisdiction. Jurisdic*764tion has been established under 28 U.S.C. § 1338.
The majority is incorrect in its conclusion that, absent interference, a court has no power under section 291 to adjudicate the validity of any patent. The court has “power” by virtue of its jurisdiction under section 1338; however, absent interference, the issue of validity is not properly placed before the court for decision.
Because the issue of the validity of the Porter patent is not properly before the district court, the district court cannot grant Albert the relief requested under section 291.
Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Swafford v. Templeton, 185 U.S. 487, 493, 494 [22 S.Ct. 783, 785, 786, 46 L.Ed. 1005]; Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 [44 S.Ct. 96, 98-99, 68 L.Ed. 308]. [Footnote omitted.] * * *
Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).
The disclaimer of claims 1, 2, and 3 of the Porter patent effectively made the issue of interfering patents moot. Albert could not establish that the patents interfere, thus no interfering patents were presented to the trial court for a ruling on validity. No case or controversy remained. I would vacate the summary judgment granted December 23, 1982, on count 3 and remand to the district court with instructions to dismiss the cause of action under section 291 as moot.