Patent Law

DJ: immediacy of any threat of future injury?

By Lawrence B. Ebert, Esq.

In analyzing jurisdictional questions in declaratory judgment actions, there is no
bright-line rule. MedImmune, 127 S. Ct. at 771. Instead, ?the question in each case is
whether the facts alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.? Id.

Of de novo review:

As an initial matter, because we review issues of jurisdiction de novo, we need
not decide whether the logic or supporting rationale as stated by the district court was
sound. Mangosoft, Inc. v. Oracle Corp., 525 F.3d 1327, 1330 (Fed. Cir. 2008). See
also Acumed LLC v. Stryker Corp., 483 F.3d 800, 809 n.2 (Fed. Cir. 2007) (?We review
only the district court?s finished product, not its process.?). We realize that the word
?dispositive? may have created the misimpression that the district court only considered
a single factor in deciding the case. However, the district court expressly acknowledged
the correct legal test under MedImmune and plainly took all the relevant facts into
account in determining subject matter jurisdiction, as a reading of its entire Order
shows.

Of burden:

A party claiming declaratory judgment jurisdiction has the burden to establish the
existence of such jurisdiction. See Benitec Austl., Ltd. v. Nucleonics, Inc., 495 F.3d
1340, 1344 (Fed. Cir. 2007).

(...)
We have previous stated that if a declaratory judgment defendant
adequately challenges jurisdiction in fact, ?the allegations in the complaint are not
controlling.? Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993).

(...)

We recently reiterated that an actual ?controversy must be based on a real and
immediate injury or threat of future injury that is caused by the defendants?an objective
standard that cannot be met by a purely subjective or speculative fear of future harm.?
Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1338 (Fed. Cir. 2008)

See also

http://ipbiz.blogspot.com/2008/09/cafc-affirms-d-nj-in-janssen-v-apotex.html

http://ipbiz.blogspot.com/2008/08/cafc-gives-exposition-of-dj-issues-post.html

Full post as published by IPBiz on January 08, 2009 (boomark / email).