Thanks again to our friends at Duane Morris we learn that one federal circuit court has lowered the threshhold for declaratory judgment jurisdiction in patent actions.  

SanDisk Corp. v. STMicroelectronics, Inc., et al., No. 05-1300

On March 26, 2007, the Federal Circuit significantly lowered the bar for determining when a prospective patent licensee can initiate a declaratory judgment action. In response to the Supreme Court’s rejection of the Federal Circuit’s “reasonable apprehension of suit” test for determining declaratory judgment jurisdiction in MedImmune Inc. v. Genentech, Inc., et al., 127 S. Ct. 764 (January 9, 2007), the Federal Circuit set forth a new rule and held that in the context of pre-litigation licensing negotiations “where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party,” declaratory judgment jurisdiction will arise.

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