(concurring in the result).
Appellant, Erd V. Crowell, brought an action against appellees, Baker Oil Tools, Inc. (a corporation), Reuben C. Baker and T. Sutter, in the District Court of the United States for the Southern District of California. After answering the complaint, appellees moved for and obtained a summary judgment dismissing the action.1 From that judgment this appeal is prosecuted.
The question first to be considered is whether the District Court had jurisdiction over the subject matter of the action. Appellees attempted to raise the question by their motion for a summary judgment. That was not a proper way to raise it ;2 but, whether properly raised or not, the question is here and must be decided.3
The District Court’s jurisdiction was invoked on the ground that the action arose under the patent laws.4 To determine whether it did or did not so arise, I examine the complaint.5
From the complaint it appears that, at the time of its filing, there was an actual controversy between appellant and appellees, in that the corporation owned a patent (No. 1,748,007) for a guiding, floating and cementing device for well casings; that appellant was engaged in manufacturing for sale a device similar to the patented device; that the corporation had notified appellant that he was infringing the patent and had brought a suit against him for the claimed infringement; that the infringement suit had been dismissed, without prejudice, on the corporation’s motion, but that Baker and Sutter, as officers and agents of the corporation, had continued to claim and were still claiming that the patent was valid; and that appellant claimed that it was invalid for lack of novelty and lack of invention.
The complaint prayed for a declaratory judgment6 (a judgment declaring the patent invalid) and a permanent injunction restraining appellees from asserting the validity of the patent and from threatening to sue appellant or its customers for infringement thereof and prayed for costs and such other relief as to the court might seem meet.
Thus it clearly appears that the action arose under the patent laws,7 and that the District Court had jurisdiction over the subject matter thereof.8
The question next to be considered is whether the motion for a summary judgment was well founded. Summary judgments are provided for in Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following § 723c, reading as follows:
“Rule 56. Summary Judgment * * *
“(h) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
“(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time specified for the hearing. The adverse party prior to the day of hear*1006ing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
* * * *
“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court •may permit affidavits to be supplemented or opposed by depositions or by further affidavits.”
In this case, a declaratory judgment was sought against appellees. There was no prayer for damages, no counterclaim, no cross-claim. Appellees moved with a supporting affidavit for a summary judgment in their favor. Appellant served an opposing ' affidavit made by himself. The supporting affidavit was supplemented by a deposition of appellant taken by appellees. There were no further depositions or affidavits. The pleadings were (1) the complaint and (2) the answer. There were no admissions except those in the answer, the opposing affidavit and the deposition. The answer admitted some of the allegations of the complaint, denied others9 and contained allegations which were deemed denied.10 Some, at least, of the issues thus raised were genuine issues as to material facts.
Thus, instead of showing that there was no genuine issue as to any material fact, the pleadings showed that there were such issues. The deposition and affidavits showed nothing to the contrary. I conclude that the motion for a summary judgment was not well founded11 and should have been .denied.
The judgment should be reversed, and the case should be remanded for further proceedings.
Jones v. Brush, 9 Cir., 143 F.2d 733.
Southern Pac. Co. v. McAdoo, 9 Cir., 82 F.2d 121; Electro Therapy Products Co. v. Strong, 9 Cir., 84 F.2d 766; Gavica v. Donaugh, 9 Cir., 93 F.2d 173; Royalty Service Corp. v. Los Angeles, 9 Cir., 98 F.2d 551; Minnis v. Southern Pac. Co., 9 Cir., 98 F.2d 913; Alexander v. Westgate-Greenland Oil Co., 9 Cir., 111 F.2d 769; Cheyne v. Atchison, T. & S. F. Ry. Co., 9 Cir., 125 F.2d 49; Jones v. Brush, supra.
See Judicial Code, § 24(7), 28 U.S.C.A. § 41(7).
Swank v. Patterson, 9 Cir., 139 F.2d 145; Jones v. Brush, supra.
See Judicial Code, § 274d, 28 U.S.C.A. § 400.
Cf. E. Edelmann & Co. v. Triple-A Specialty Co., 7 Cir., 88 F.2d 852; Milwaukee Gas Specialty Co. v. Mercoid Corp., 7 Cir., 104 F.2d 589; Chicago Metallic Mfg. Co. v. Edward Katzingcr Co., 7 Cir., 123 F.2d 518; Grip Nut Co. v. Sharp, 7 Cir., 124 F.2d 814. See, also, E. W. Bliss Co. v. Cold Metal Process Co., 6 Cir., 102 F.2d 105; Leach v. Ross Heater & Mfg. Co., 2 Cir., 104 F.2d 88; United States Galvanizing & Plating Equipment Corp. v. Hanson-Van Winkle-Munning Co., 4 Cir., 104 F.2d 856; Caterpillar Tractor Co. v. International Harvester Co., 9 Cir., 106 F.2d 769; Lances v. Letz, 2 Cir., 115 F.2d 916; Creamery Package Mfg. Co. v. Cherry-Burrell Corp., 3 Cir., 115 F.2d 980; Treemond Co. v. Schering Corp., 3 Cir., 122 F.2d 702; Alfred Hofmann, Inc., v. Knitting Machines Corp., 3 Cir., 123 F.2d 458; Dewey & Almy Chemical Co. v. American Anode, 3 Cir., 137 F.2d 68.
See cases cited in footnote 7.
The complaint contained 14 numbered paragraphs. The answer admitted the allegations of paragraphs 1, 3, 6 and 7, denied the allegations of paragraphs 2, 4, 8, 9, 10, 11, 12, 13 and 14, admitted some and denied some of the allegations of paragraph 5.
See Rule 8(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c.
Cf. State of Washington v. Maricopa County, 9 Cir., 143 F.2d 871.