Another “Case or Controversy” Decision Post- “MedImmune”

The District Court recently held that evidence of “marketing products or services and entering into licensing agreements” is enough to support declaratory judgment jurisdiction. Cordance Corp. v., Inc., C.A. No. 06-491-MPT, Memo. Order (D. Del. Nov. 20, 2007). This is true even where there is no allegedly infringing product or service currently on the market and where there was no threatened litigation or request to cease and desist. Following the Supreme Court’s holding in MedImmune which rejected the requirement of “reasonable apprehension”, the Court found that the counterclaim defendant’s advertising and promoting of a service that was expected to be introduced, development of the architecture used by other companies to allegedly infringe the patent and receiving licensing fees related to the allegedly infringing service was enough to create a “case or controversy” sufficient for the Court to have jurisdiction. Id. at 7.

In a separate argument, the counterclaim defendant asserted that Amazon’s counterclaim was vague and failed to state a claim because it did not “sufficiently identify which products allegedly infringe.” Id. at 5. The Court found that Amazon did not need to identify specific products by name, “so long as they are sufficiently described in some way.” Id. at 8.

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