UNITED STATES COURT OF APPEAL FOR THE FEDERAL CIRCUIT
CONSTANT v. ADVANCED MICRO-DEVICES, 88-1101
SUGGESTION FOR LACK OF JURISDICTION
AND MOTION FOR CERTIFYING QUESTIONS OF LAW
This suggestion is made pursuant to FRCP 12(h)(3) and this motion is made pursuant to FRCP 2 and 28 U.S.C. 1254(2). As the United States Supreme Court has held "Rule 12(h)(3) instructs: ' if it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.'" Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). Italics added. Or, alternatively, the Court may sua sponte certify the questions of law presented herein below to the United States Supreme Court.
In James Constant vs AMD et. als, 848 F.2d 1560 No. 88-1101 (1988)1, a patent suit with infringement claims (19 alleged infringers) and invalidity counterclaims (and declarations of invalidity), the Court decided appellant's patents were invalid without deciding the infringement claims. The Court allowed attorney's fees and appellant declared bankruptcy.
In James Constant Debtor vs AMD 12 F.3d 1105 Nos. 92-55465, 92-56220 and 92-56475 (1993)2, appellant inter alia was ordered to assign 30 of his patents to AMD for non-payment of attorney's fees.
QUESTIONS OF LAW PRESENTED
1. In deciding patent cases and controversies, does a court have power to invoke the "public interest" in making its decision?
2. In a patent suit with infringement claim and invalidity counterclaim (or declaration of invalidity), can a court decide the validity counterclaim (or declaration of invalidity) without deciding the infringement claim?
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