HUTCHESON, Circuit Judge.
Brought for injunction and for treble damages, the suit was to restrain, as violative of the anti-trust laws 1 of the United [851]*851States, the completion and putting into effect of a partially completed trust agreement2 for pooling conflicting patents, granting licenses,3 and fixing minimum prices in the citrus feed industry.
Alleging: that plaintiff is a manufacturer of a citrus waste product suitable and desirable as a cattle feed; that, prior to the complained of agreements of defendants, the market price for plaintiff’s products, as well as for that of other manufacturers in competition with plaintiff had been established by free competition; that defendants, owning and claiming to be the owners of, letters patent and an application for letters patent by one Wayne M. Neal, had entered into an agreement for the purpose of combining and pooling their patents and patent claims, of fixing royalties, and of fixing prices of products manufactured under the Neal application and the patent to be granted on it; plaintiff’s claim was that the complained of agreements are in violation of the anti-trust laws and their effect will be to injure and harass plaintiff and other citrus waste processors. There was a further claim that the subject matter of the Neal application was public property and not patentable because the payment of Neal’s salary, while working for the State of Florida, had been made out of Purnell Act
The State of Florida admitted that it is the owner of the Neal application for letters patent, and that the application was filed by Neal while an employee of the State of Florida and while the State was the recipient of the Purnell funds. It denied that the subject matter of the application was thereby made a part of the public domain. Denying that it and the other defendants were joined in an agreement or combination in restraint of trade, it alleged that it had conducted negotiations with Vincent and the other defendants, with the result that a tentative trust agreement had been formulated but not yet signed by the trustee for the purpose of protecting processors of citrus waste against destructive patent suits, and when and if minimum prices are established by the State, to insure that products covered by patent claims resulting from the Neal application are npt sold below cost of the product.
The defendant Vincent made substantially the same answer and also filed a counter-claim, in which, setting out that he had been charged with conspiracy to restrain trade, he denied that this was so. Pleading his patents and the contests over them, he further alleged that in an effort to settle these.patent conflicts and bring peace to the citrus waste industry, he had entered into negotiations with the State of Florida looking to the settlement proposed in the tentative trust and license agreements, Exhibits A and B. Alleging that they are not in violation of the anti-trust acts, he sought a declaratory judgment to that effect.
There was a reply by plaintiff to both counter-claims, a pre-trial conference at [852]*852which a long statement, afterward made a part of the record, was made by defendant Vincent, an amendment to Vincent’s answer showing that since the filing of the suit and the pre-trial conference, Vincent’s patent had been reissued and that it would be assigned to the trustee in substitution of the original Vincent patent.
Thereafter, plaintiff filed a motion for judgment on the pleadings, stipulations, the report of proceedings, and the statement of counsel for the defendants at the pretrial conference,4 and argument was joined on two questions 5 of law: (1) The primary question, whether the entering into the trust agreement was per se a violation of [853]*853the' anti-trust laws; and (2), the subsidiary one, whether the Neal invention had been dedicated to the public.
The district judge, of the opinion that the pooling' of the various patents and the Neal application, for the purpose set forth in the trust and license agreements was not illegal, cited in support: Standard Oil v. United States, 283 U.S. 163, 51 S.Ct. 421, 75 L.Ed. 926; Westinghouse v. Formica, 266 U.S. 342, 45 S.Ct. 117, 69 L.Ed. 316; Mumm v. Decker, 301 U.S. 168, 170, 57 S.Ct. 675, 81 L.Ed. 983; United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362; and State v. Neal, 152 Fla. 582, 12 So.2d 590. He, therefore, held that: “Upon the uncontradicted evidence in this case * * * plaintiff has not carried the burden of showing that the proposed trust and licensing agreements, if finally approved and executed in their present forms, would constitute a violation of the anti-trust laws of the United States and plaintiff’s prayer to enjoin and prohibit the execution and putting into effect said agreements is denied.” [72 F.Supp. 740, 746.]
As to the cross-complaints of the State and Vincent for declaratory judgments, declaring the trust and license agreements valid and not in violation of the anti-trust laws of the United States, the court held: “Their prayer for a declaratory judgment is premature, the trust agreement has not yet been executed by all parties and for this reason has not yet matured to a point where this cour.t has the authority to pass npon its legality. Moreover, the court entertains grave doubt as to the applicability of the declaratory judgment act to this case. The prayer, therefore, for a declaratory judgment declaring proposed agreements valid is denied”.
Upon the basis of these views thus announced, there was a judgment: (1) “That the complaint should be and hereby •is dismissed on the merits”; (2) that the defendants recover costs; and (3) “that • defendant’s prayer for declaratory judgment be, and it is hereby denied”; and plaintiff has appealed.
Here appellant, upon the áuthority of United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550; United States v. U. S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941; Federal Trade Com’n v. Morton Salt, 332 U.S. 850, 68 S.Ct. 355; Id., 334 U.S. 37, 68 S.Ct. 822; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12; United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915; insisting that the judgment was wrong, seeks its reversal.
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HUTCHESON, Circuit Judge.
Brought for injunction and for treble damages, the suit was to restrain, as violative of the anti-trust laws 1 of the United [851]*851States, the completion and putting into effect of a partially completed trust agreement2 for pooling conflicting patents, granting licenses,3 and fixing minimum prices in the citrus feed industry.
Alleging: that plaintiff is a manufacturer of a citrus waste product suitable and desirable as a cattle feed; that, prior to the complained of agreements of defendants, the market price for plaintiff’s products, as well as for that of other manufacturers in competition with plaintiff had been established by free competition; that defendants, owning and claiming to be the owners of, letters patent and an application for letters patent by one Wayne M. Neal, had entered into an agreement for the purpose of combining and pooling their patents and patent claims, of fixing royalties, and of fixing prices of products manufactured under the Neal application and the patent to be granted on it; plaintiff’s claim was that the complained of agreements are in violation of the anti-trust laws and their effect will be to injure and harass plaintiff and other citrus waste processors. There was a further claim that the subject matter of the Neal application was public property and not patentable because the payment of Neal’s salary, while working for the State of Florida, had been made out of Purnell Act
The State of Florida admitted that it is the owner of the Neal application for letters patent, and that the application was filed by Neal while an employee of the State of Florida and while the State was the recipient of the Purnell funds. It denied that the subject matter of the application was thereby made a part of the public domain. Denying that it and the other defendants were joined in an agreement or combination in restraint of trade, it alleged that it had conducted negotiations with Vincent and the other defendants, with the result that a tentative trust agreement had been formulated but not yet signed by the trustee for the purpose of protecting processors of citrus waste against destructive patent suits, and when and if minimum prices are established by the State, to insure that products covered by patent claims resulting from the Neal application are npt sold below cost of the product.
The defendant Vincent made substantially the same answer and also filed a counter-claim, in which, setting out that he had been charged with conspiracy to restrain trade, he denied that this was so. Pleading his patents and the contests over them, he further alleged that in an effort to settle these.patent conflicts and bring peace to the citrus waste industry, he had entered into negotiations with the State of Florida looking to the settlement proposed in the tentative trust and license agreements, Exhibits A and B. Alleging that they are not in violation of the anti-trust acts, he sought a declaratory judgment to that effect.
There was a reply by plaintiff to both counter-claims, a pre-trial conference at [852]*852which a long statement, afterward made a part of the record, was made by defendant Vincent, an amendment to Vincent’s answer showing that since the filing of the suit and the pre-trial conference, Vincent’s patent had been reissued and that it would be assigned to the trustee in substitution of the original Vincent patent.
Thereafter, plaintiff filed a motion for judgment on the pleadings, stipulations, the report of proceedings, and the statement of counsel for the defendants at the pretrial conference,4 and argument was joined on two questions 5 of law: (1) The primary question, whether the entering into the trust agreement was per se a violation of [853]*853the' anti-trust laws; and (2), the subsidiary one, whether the Neal invention had been dedicated to the public.
The district judge, of the opinion that the pooling' of the various patents and the Neal application, for the purpose set forth in the trust and license agreements was not illegal, cited in support: Standard Oil v. United States, 283 U.S. 163, 51 S.Ct. 421, 75 L.Ed. 926; Westinghouse v. Formica, 266 U.S. 342, 45 S.Ct. 117, 69 L.Ed. 316; Mumm v. Decker, 301 U.S. 168, 170, 57 S.Ct. 675, 81 L.Ed. 983; United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362; and State v. Neal, 152 Fla. 582, 12 So.2d 590. He, therefore, held that: “Upon the uncontradicted evidence in this case * * * plaintiff has not carried the burden of showing that the proposed trust and licensing agreements, if finally approved and executed in their present forms, would constitute a violation of the anti-trust laws of the United States and plaintiff’s prayer to enjoin and prohibit the execution and putting into effect said agreements is denied.” [72 F.Supp. 740, 746.]
As to the cross-complaints of the State and Vincent for declaratory judgments, declaring the trust and license agreements valid and not in violation of the anti-trust laws of the United States, the court held: “Their prayer for a declaratory judgment is premature, the trust agreement has not yet been executed by all parties and for this reason has not yet matured to a point where this cour.t has the authority to pass npon its legality. Moreover, the court entertains grave doubt as to the applicability of the declaratory judgment act to this case. The prayer, therefore, for a declaratory judgment declaring proposed agreements valid is denied”.
Upon the basis of these views thus announced, there was a judgment: (1) “That the complaint should be and hereby •is dismissed on the merits”; (2) that the defendants recover costs; and (3) “that • defendant’s prayer for declaratory judgment be, and it is hereby denied”; and plaintiff has appealed.
Here appellant, upon the áuthority of United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550; United States v. U. S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941; Federal Trade Com’n v. Morton Salt, 332 U.S. 850, 68 S.Ct. 355; Id., 334 U.S. 37, 68 S.Ct. 822; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12; United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915; insisting that the judgment was wrong, seeks its reversal.
Appellees, upon the basis of the authorities relied on by the court below, insist that the judgment was right and should be affirmed.
Interesting as these contentions are, we find it unnecessary to resolve, or even to consider, them. We agree with the district judge’s view that defendants’ prayer for a declaratory judgment was premature for the reason he gave, that the trust agreement had not yet been executed by all parties and for that reason had not yet matured to a point where the court had authority to pass upon its legality.
For the same reason plaintiff’s suit was premature, and should have been dismissed as such. But it was premature for other reasons. The agreement, which plaintiff alleges constitutes per se the conspiracy charge, provides in terms for the appointment of a committee to act with the trustee in carrying out the trust. It is undisputed that the trustee has not accepted the trust and that no committee has been formed. The trust agreement provides for fixing prices interstate only in respect of licensed products covered by claims under a Neal patent issued upon the Neal application, and then only if the price “is determined solely by those members of the committee appointed by the state or by other duly appointed state representatives acting by virtue of legal authority in the State of Florida”. It is admitted that no Neal patent has issued and that until one does issue, no price fixing will be attempted, and no authority in this respect exercised. It is admitted that no members of the committee have been appointed by the state, and that no other duly appointed state representatives acting by virtue of legal authority in the State of Florida have appeared to exercise the power.
[854]*854Matters standing thus, what the plaintiff has presented to the court is not an actual controversy for decision or an actual threatened injury for redress. It is a request for an advisory opinion on a purely hypothetical situation, which has not arisen, and which may or may not arise according to whether the trust instrument is or is not fully signed and made effective by the appointment of the committee under it and the obtaining of legal authority from the State of Florida with respect to fixing prices, and whether a Neal patent containing product claims is granted.
In these circumstances, instead of declining merely to entertain defendants’ counter-claim, the district judge should also have declined to take cognizance of plaintiff’s complaint and dismissed it without prejudice.
The judgment is reversed and the cause is remanded with directions to dismiss it without prejudice.
7 U.S.C.A. § 146.