This appeal must be dismissed because the controversy between the parties, if any ever existed, has now become moot. The Trial Court held that there was no infringment by Signalite, the plaintiff in the declaratory judgment suit. The defendant did not appeal from this finding. So far as this patent is concerned, therefore, plaintiff’s fuse is free from attack by the defendant. And, of course, there cannot be any issue of damages for past conduct in the absence of infringement.

The Smalley patent, concerned in this controversy, was issued March 22, 1932 and expired March 22, 1949. 35 U.S.C.A. § 40. The plaintiff, then, has been adjudged not to have been an infringer during the life of the patent and it certainly cannot become one now that the patent has expired. We see no case or controversy between the parties and the litigation between them, therefore, must end. See Cover v. Schwartz, 2 Cir., 1942, 133 F.2d 541, 546, certiorari denied 1943, 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703.

The appeal will be dismissed.