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Patent Demand Letters: Avoiding Declaratory Judgment Jurisdiction -- Part 2 of 2



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"1 standard) handed down by the Supreme Court in MedImmune, Inc. v. Genentech, Inc.2 and embraced by the Federal Circuit.3 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.

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