Strand Authors Article on Federal Circuit’s “At War” Standard for Declaratory Judgment Jurisdiction in Patent Disputes

Shook, Hardy & Bacon Partner Peter Strand has authored an article titled “Startling Jurisdiction Expansion?—‘At War’ Standard Modifies ‘Case-or-Controversy’ Requirement,” appearing in the July 2014 issue of Walters Kluwer’s Intellectual Property & Technology Law Journal. The article discusses the Article III case-or-controversy standard applied to patent infringement lawsuits before the Federal Circuit Court of Appeals decided Danisco U.S. Inc. v. Novozymes A/S, which appears to have redefined and expanded the Article III jurisdiction standard in a declaratory judgment action. The court concluded that the record demonstrated the existence of a definite and concrete patent dispute between the parties, stating that they “have plainly been at war over patents involving . . . enzymes and are likely to be for the foreseeable future.” In this regard, the court rejected the defendant’s argument that Article III was not satisfied because Danisco’s declaratory judgment claims were based on “nothing more than speculation and a subjective fear of Novozymes’s purported enforcement of its patent rights.” Strand suggests that the ruling “could be practice changing. The old ‘reasonable-apprehension-of-suit’ test apparently has given way to a new, much more liberal, ‘at war’ standard.” He concludes by setting forth the questions counsel should ask when evaluating whether this “new-found tool for infringement cases between competitors” can be applied in their disputes.