By Kristin Johnson Doyle of Kilpatrick Stockton The first installment of this article detailed a new standard for establishing declaratory judgment jurisdiction (the "all the circumstances"
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standard) handed down by the Supreme Court in
MedImmune, Inc. v. Genentech, Inc.
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and embraced by the Federal Circuit.
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This new standard dramatically lowered the threshold for such jurisdiction so that most patent demand
letters, drafted in accordance with traditional practices, will create declaratory judgment jurisdiction.
This final installment identifies factors likely to trigger declaratory judgment jurisdiction
and recommends steps a patent owner can take to avoid invoking declaratory judgment jurisdiction when sending demand letters.
The Impact of MedImmune
The practical effect of MedImmune was to lower the bar for an alleged infringer to
bring a declaratory judgment action in a patent dispute. Post-MedImmune cases applying the new declaratory
judgment standard have reinforced the breadth of the new standard. While jurisdiction is assessed on a case-by-case
basis, courts in the vast majority of decisions issued post-MedImmune have exercised jurisdiction.
