Plaintiffs brought this action under Section 146 of the Patent Statutes (35 U.S.C. § 146),1 to review a decision of the Board of Patent Interferences determining the issue of priority of inven*492tíon in favor of the defendant. The district court reversed the decision of the Board and authorized the Commissioner of Patents to issue a patent to the plaintiffs. For the reasons set forth hereafter we grant appellees’ motion to dismiss defendant’s appeal from the judgment of the district court.
The invention here in issue involves the basic design of the electronic computer called the “Electronic Numerical Integrator and Computer” (ENIAC). The applications which were considered in the Patent Office Interference were those of plaintiffs Eckert and Mauchly, assigned to plaintiff Sperry Rand Corporation and one Samuel B. Williams, assigned to defendant. The Patent Office decided that the Williams invention was prior, and the plaintiffs, “dissatisfied with the decision” brought the present action.
In the district court the defendant originally interposed three defenses: (1) that the plaintiffs had not proved the reduction to practice of the invention prior to the filing of the Williams application in 1947, (2) that even if plaintiffs had reduced the invention to practice prior to 1947, Williams was entitled to priority on the basis of an application filed in 1942, and (3) that the machine was in public use more than one year prior to the filing of the Eckert and Mauchly application.
In the course of the proceedings in the district court, the defendant abandoned the first2 and second3 of these defenses. Thus the only contested issue before the district court was the third of the defenses, the contention that plaintiffs were not entitled to a patent because of public use more than a year before the filing of application. On this issue the district court rendered a decision favorable to the plaintiffs and authorized the issuance of a patent to them.
On this appeal the defendant has not sought to revive the issues which it abandoned in the district court, nor has it raised any new issue. Defendant’s entire argument is addressed to the correctness of the district court’s ruling that plaintiffs’ invention was not publicly used more than one year before their application was filed.
Thus defendant is now in the position of contesting plaintiffs’ right to the issuance of a patent on the ENIAC, while it neither claims priority for itself nor advances any other ground which would *493entitle it to a patent on that machine. We hold that, since the defendant makes no claim in its own behalf, it has no standing to prosecute this appeal.
It is elementary that a stranger to the litigation cannot take an appeal. The defendant does not argue that the judgment of the district court invaded any of its rights. It is clear that by that judgment the defendant suffered no detriment and that its position was not prejudiced.
The defendant makes some attempt to claim the right by this appeal to vindicate what it calls the public interest. But, as regards the public interest, the defendant is a mere volunteer. With no claim of any special relationship to the issue it seeks to litigate it has no more status to represent the public interest than any man off the streets. Moreover the statute on the basis of which the action was brought provides for representation of the public interest by the Commissioner of Patents, who was informed of the institution of the action and has not elected to intervene.
Authority is hardly needed for a proposition so obvious as that one who has no interest in the litigation, and who asserts no right which has been adversely affected by the decision of the lower court, cannot appeal from that decision. However, if authority were required, the case of Cover v. Schwartz, 133 F.2d 541 (2d Cir.) cert. denied, 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703 (1943), would amply provide such authority.
In the Cover case the plaintiff, having abandoned his claim that defendant had infringed plaintiff’s patent, sought to appeal only from the determination that his own patent was invalid. The court said, at page 544:
“In other words, appellant is stating that he is asking no relief against anybody before the court (or so far as we know against anyone else), that there is no real dispute, no case or controversy, but that he wants an advisory opinion that his patent is valid. Of course, no federal court can constitutionally give an advisory opinion, since the Constitution confers jurisdiction on federal courts only where there exists a case or controversy.”
See also Sanford v. Kepner, 344 U.S. 13, 73 S.Ct. 75, 97 L.Ed. 12 (1952).
In the present case the appellant seeks no relief for itself. It asks only for a declaration of the invalidity of the plaintiffs’ patent, a declaration which, if it were made, would not leave appellant in any better position that than in which it now finds itself.4
Hill v. Wooster, 132 U.S. 693, 10 S.Ct. 228, 33 L.Ed. 502 (1890) from which defendant seeks support for its position does not provide such support. In the Hill case the lower court in deciding that plaintiff was entitled to a patent rested its decision solely on a finding of priority. On appeal from this decision, the Supreme Court held that, under the statute, which was the predecessor of Section 146, the lower court (and the Supreme Court) could not properly authorize the issuance of a patent without deciding, in addition to priority, the issue of patentability. The Hill case differs from the present case in the vital respect that in Hill the appellant was contesting the issue of priority and therefore had standing to appeal, whereas in the present case the defendant contests no issue on which it has the requisite legal interests for an appeal.
Because, therefore, the defendant is a stranger to the litigation, who cannot properly claim to have been adversely affected by the decision of the district court, appellees’ motion to dismiss the appeal must be granted.
Appeal dismissed.