General Warning to Industry Did Not Create Substantial Controversy Sufficient to Support Declaratory Judgment Claim

The court granted defendants' motion to dismiss plaintiffs' declaratory relief claim for lack of an actual controversy. "[P]laintiffs allege that [defendant] has 'declined to license' to third parties, and that [it] has generally 'warned' the industry that it would not tolerate infringement of the [patent-in-suit]. Unfortunately for plaintiffs, these facts are insufficient to establish an actual controversy under the central lesson of [Innovative Therapies Inc. v. Kinetic Concepts, Inc., 599 F.3d 1377 (Fed. Cir. 2010)]: that a patentee’s actions toward third parties are generally not sufficient to establish declaratory judgment jurisdiction."

Mama Cares Foundation, et. al. v. Nutriset Societe Anonym France, et. al., 1-09-cv-02395 (DCD November 18, 2011, Order) (Lamberth, J.)