The opinion
COLE, Judge
(dissenting).
In reaching a different conclusion from that presented in the majority opinion, I find it advisable to present this statement of my reasons therefor, which statement becomes brief because of the excellent rehearsal by my colleagues of the background and present status of this litigation.
As so aptly stated by the United States, in its brief, “of course, when a court’s jurisdiction is drawn in question this is the threshold question in the case.” This litigation was initiated, as the title indicates, by the United States as the sole plaintiff and was against the defendants now appearing as defendant petitioners herein except USG which appears as defendant respondent thereto; also, initially, it had as its basis the protection of the public interest in enforcing provisions of the anti-trust laws. The final judgment, entered therein after many years of intensive litigation, found against all defendants in language clear, concise, and completely capable of interpretation to meet any applicable situation growing out of the relationship which was the subject matter thereof. Inter alia, it adjudged unlawful under the anti-trust laws of the United States, and illegal, null and void each of the license agreements listed in the decree.
It is my view that the United States can be the sole spokesman for the public interest. Buckeye Coal & Ry. Co. v. Hocking Valley Ry. Co., 269 U.S. 42 , 46 S.Ct. 61 , 70 L.Ed. 155 . While there have been situations, such as in the case of Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 665 , 61 S.Ct. 666 , 85 L.Ed. 975 , which might be construed, to some extent, as tending to contradict the rule laid down in the Buckeye case, supra, I do not so regard it.
Article X of the decree in this suit is quite broad in providing that the parties may apply to this Court “at any time for such orders, modifications, vacations or directions as may be necessary or appropriate (1) for the construction or carrying out of this decree, and (2) for the enforcement of compliance therewith,”' but this does not, in my opinion, contain the right for the defendants to stand', in the shoes of, or even with, the United States as a protector of the public interest in litigation of this character and,, in so doing, settle their own private' deferences. Likewise, such litigation, initiated by the United States, will not permit the main action to be encumbered, with extraneous issues of a private nature. United States v. Columbia Gas & Electric Corporation, D.C., 27 F.Supp.. 116.
The opposite viewpoint looks for support to Missouri-Kansas Pipe Line Co. v. United States, supra [ 312 U.S. 502, 665 , 61 S.Ct. 669 ], which was an anti-trust, proceeding wherein a consent decree was. entered under which consent decree a stockholder of the defendant corporation, had the right to become a party which, right he sought to exercise. The Attorney General approved the plan presented, by the petitioner for modification of the original decree. It is significant that the court in dealing with this phase of the litigation said:
“ * * * This, we are told, ‘is believed to satisfy the public interest’, and so the Government desires, to sustain the action of the court, below without further litigation.. We recognize the duty of expeditious enforcement of the antitrust laws. But expedition cannot be had. at the sacrifice of rights which the original decree itself established. We assume that the district court will adjust the right which belongs to Panhandle with full regard to that public interest which underlay the original suit.
Following a rehearsal of the chronological course this lengthy controversy pursued, the United States, in its brief,, made this statement:
“It is, of course, probable that the courts in which suits have been *599 brought will give effect to this •Court’s judgment and dismiss, because of the judgment, all claims based on the voided license agreements. * * *
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“* * * The position of the United States, as set forth in its petition, is that said final judgment bars enforcement of any claim based in whole or in part upon any license .agreement thus adjudged null and void, and that suit to recover upon any such claim constitutes an attempt to defeat the Court’s final judgment. The petition prays, by way of relief, that this Court enjoin USG from asserting any claim and from maintaining, instituting, or threatening to institute any action, based in whole or in part on any license agreement which the Court bad adjudged illegal, null and void.
“The United States stated in its petition that it takes no position as ■to whether USG’s alternative claims for recovery on a quantum meruit ■basis or for infringement, as made in the four foregoing actions, are ■barred by this Court’s final decree ■of May 15, 1951, or as to whether this Court should enter an order enjoining USG from prosecuting such alternative claims.” [Italics supplied.]
Just why this court, under the cir•cumstances, should feel called upon, in view of the Government’s position, to restrain prosecution of the pending suits in the several district courts and take up- ■ on itself the adjudication of the controversy between the defendants when that ■ controversy involves issues, such as the right to recover under quantum meruit ■ or infringement, as alleged, when the ^Government as the sole protector of the public interest in litigation of this character does not join the petitioners in such request for this court to do so, but by inference at least suggests that it is beyond the scope of the decree handed down in these proceedings, I do not appreciate. If this court restrained the prosecution of the pending suits to the extent the Government’s position finds the recovery sought herein to be within that prohibited by the final decree, the right, if any, to the petitioning defendant, USG, to recover under quantum meruit or infringement would have remained for adjudication in the district courts. Thus, the suits pending therein would continue as presently docketed for trial. Also, the several district courts wherein the suits are now pending are quite capable of construing and interpreting the meaning of the judgment passed in these proceedings, as applied to the pleadings and factual record subsequently to be developed in those courts, and rule thereon accordingly.
I do not find the situation before us as one requiring this court to spell out in supplementation of its original decree every conceivable type of litigation which, might develop between the defendants and presumed to have grown out of the relationship stricken down. Neither do I find the existing situation to be one calling for resort to Article X of the judgment by this court in order to construe, carry out, or enforce said judgment. Inherent power rests with this court always in proceedings of this character to enforce its judgments when such appears advisable. I do not, however, find need for the application of such power in these proceedings.
In the light of the foregoing expression of my views, I find it unnecessary to discuss other points argued in the case.