Opinion of the Court. 320 U.S. aspect, together with the relevant testimony, which the court below did not do. In the present state of the record we do not undertake to determine whether and to what extent these disclosures either anticipate Claim 16 of the Marconi patent or require that claim to be so narrowly construed that defendants' accused devices or some of them do not infringe Marconi. Although the Pupin and Fessenden patents were in the record before the Court of Claims when it entered its decision finding Claim 16 valid and infringed, they were not referred to in connection with Claim 16 either in the court's opinion or in its findings, evidently because not urged upon that court by the Government as anticipating Claim 16. But this Court, in the exercise of its appellate power, is not precluded from looking at any evidence of record which, whether or not called to the attention of the court below, is relevant to and may affect the correctness of its decision sustaining or denying any contention which a party has made before it. Muncie Gear Co. v. Outboard Motor Co., 315 U. S. 759, 766–8; Act of May 22, 1939, 28 U. S. C. § 288; cf. Hormel v. Helvering, 312 U. S. 552, 556. In order to determine whether this Court should consider the evidence which the Government now presses upon it, and should on the basis of that evidence either decide for itself whether Claim 16 is valid and infringed or remand that question to the Court of Claims for further consideration, it is necessary to set out in some detail the relevant proceedings below. The case was referred to a special commissioner for the taking of testimony under a stipulation that the issue of reasonable compensation for damages and profits be postponed until the determination of the issues of validity and infringement. On June 26, 1933, the Commissioner filed a report in which he made the following findings with regard to Claim 16, which the Court of Claims later adopted in substance: "LXII. Claim 16 of Marconi #763772 is directed to subject matter which is new and useful.. "LXV. The receiving apparatus of the Kilbourne & Clark Company, shown in exhibit 95, and the receiver made by the Telefunken company, illustrated in exhibit 79, each has apparatus coming within the terminology of claim 16." Both parties filed exceptions to the Commissioner's report. The Marconi Company excepted to part of finding LXII, and took several exceptions which were formally addressed to finding LXV. The Government, in a memorandum, opposed the suggested amendments to these findings. But the Government filed no exceptions to these two findings, nor did it, in its extensive brief before the Court of Claims, make any contention that Claim 16 either is invalid or was not infringed. After the court had rendered its interlocutory decision holding Claim 16 valid and infringed, the case was sent back to the Commissioner to take evidence on the accounting. Much evidence was taken bearing on the function served by the condenser in the arrangement described in Claim 16 and in the Government's receivers, and in that connection the Pupin and Fessenden patents were again introduced in evidence by the Government. When the Pupin patent was offered the Commissioner stated: "Obviously, as I understand the offer of this patent of Pupin, it does not in any way attack the validity of Claim 16 of the Marconi patent in suit. As you state Mr. Blackmar, that has been decided by the Court, and I do not recall just now what procedure was followed after the decision and prior to this accounting proceeding; but the defendant had at that time opportunity for a motion for a new trial and presentation of newly-discovered evidence and all those matters." Accordingly, the Commissioner stated that he received the patent in evidence "for the sole purpose of aiding the witness and the Commissioner and the Opinion of the Court. 320 U.S. Court in an understanding of how the condenser in the Marconi patent operates." And in offering the Fessenden patent counsel for the Government similarly stated that it was offered "not to show invalidity but as showing justification for the defendant's use." In its exceptions to the Commissioner's report on the accounting the Government asked the Court of Claims to make certain specific findings as to the mode of operation of the arrangements disclosed in the Pupin and Fessenden patents, and also to find that "The mode of connecting the primary condenser in parallel with the antenna-to-earth capacity used by the defendant followed the disclosure of Pupin 640,516 and the Fessenden patent 706,735 . . . and hence does not infringe the Marconi claim 16 which is based upon a different arrangement, operating in a different manner to obtain a different result." The Government contended that there was no finding of fact that Claim 16 had been infringed, and that the court, in the course of the accounting proceeding had by an order of October 22, 1937, reopened the entire subject of infringement. We agree with the court that the Commissioner's finding LXV, which the court adopted as finding LXIII, was a finding of infringement, and we see no reason to question the court's conclusion that its order had not reopened the subject of infringement. In view, however, of the Government's apparent misunderstanding of the scope of the issues left open on the accounting we think that its request for a finding of noninfringement specifically addressed to the Pupin and Fessenden patents was a sufficient request to the court to reconsider its previous decision of infringement. And while most of the argument on the Government's exceptions to the Commissioner's report was based on evidence taken upon the accounting, the Government's briefs suf 1 Opinion of the Court. ficiently disclosed to the court that the Pupin and Fessenden patents, at least, had been in the record prior to the interlocutory decision. The court, in rejecting the Government's request for a finding of non-infringement, stated: "The question of infringement of Marconi Claim 16 . . . is not before us in the present accounting." "The sole purpose and function of an accounting in a patent infringement case is to ascertain the amount of compensation due, and no other issue can be brought into the accounting to change or alter the court's prior decision." We cannot say with certainty whether in rejecting the Government's request the court thought that it lacked power to reconsider its prior decision, or whether it held merely that in the exercise of its discretion it should not do so. Nor does it appear that, assuming it considered the question to be one of discretion, it recognized that in part at least the Government's request was based on evidence, having an important bearing on the validity and construction of Claim 16, which had been before the court but had not been considered by it when it held Claim 16 valid and infringed. Although the interlocutory decision of the Court of Claims on the question of validity and infringement was appealable, United States v. Esnault-Pelterie, 299 U. S. 201, 303 U. S. 26; 28 U. S. C. § 288 (b), as are interlocutory orders of district courts in suits to enjoin infringment, 28 U. S. C. § 227 (a); Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 89, the decision was not final until the conclusion of the accounting. Barnard v. Gibson, 7 How. 649; Humiston v. Stainthorp, 2 Wall. 106; Simmons Co. v. Grier Bros. Co., supra, 89. Hence the court did not lack power at any time prior to entry of its final judgment at the close of the accounting to reconsider any portion of its decision and reopen any part of the case. Perkins v. Fourniquet, 6 How. 206, 208; McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536, 544; Simmons Co. 552826-44 Opinion of the Court. 320 U.S. v. Grier Bros. Co., supra, 90-91. It was free in its discretion to grant a reargument based either on all the evidence then of record or only the evidence before the court when it rendered its interlocutory decision, or to reopen the case for further evidence. Whether it should have taken any of these courses was a matter primarily for its discretion, to be exercised in the light of various considerations which this Court cannot properly appraise without more intimate knowledge than it has of the proceedings in a long and complex trial. Among those considerations are the questions whether, as appears to be the case from such portions of the record as have been filed in this Court or cited to us by counsel, the Government failed to make any contention as to the validity or construction of Claim 16 in the proceedings leading to the interlocutory decision; whether the showing of non-infringement which it now makes is sufficiently strong, and the public interest that an invalid patent be not sustained is sufficiently great, to justify reconsidering the decision as to Claim 16 despite the failure of Government counsel to press its contention at the proper time; whether adequate consideration of the question of noninfringement can be had on the existing record, or whether additional testimony should be received; and whether, balancing the strength or weakness of the Government's present showing of non-infringement against the undesirability of further prolonging this already extended litigation, the case is one which justifies reconsideration. These are all matters requiring careful consideration by the trial court. In order that the case may receive that consideration, we vacate the judgment as to Claim 16 and remand the cause to the Court of Claims for further proceedings in conformity to this opinion. If on the remand the court should either decline to reconsider its decision of infringement, or should upon reconsideration adhere to that decision, it should pass upon |