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Declaratory Judgment Actions
IP: Scientific Evidence in Patent Litigation
Prof. Morris
Winter 2012
1/20/12 rev 0120.2025
DECLARATORY JUDGMENT ACTIONS
AND OTHER THINGS ABOUT THE COURT SYSTEM
Acer v. Technology Properties is what is called a declaratory
judgment (DJ) action. In a regular patent suit entitled X v. Y,
X is PO and Y is AI. In a DJ, X is AI and Y is PO.
Think of a DJ as a backwards lawsuit: a party you ordinarily
think of as the defendant sues a party you ordinarily think of as
the plaintiff. The DJ plaintiff comes to court seeking a
judgment declaring the parties' respective rights. Compare that
to an ordinary suit, where the plaintiff comes to court alleging
that the defendant has done wrong and asking for redress: money
(called "damages" in law-speak or, redundantly, "money damages")
or an injunction or both. [Snowflakes all around.]
The DJ is a creature of statute, 28 USC 2201 and 2202, to be
precise, not common law. The common law (that is a term of art,
by the way) is judge-made law, based on what judges have written
going back to jolly old England and the Magna Carta. DJs did
exist long before the enactment of 28 USC 2201 in 1934, but only
in courts of equity, which were not courts of law. But that gets
into heavy legal history that matters only rarely these days.
Fine Print: DJs are more common in patent law than in other areas of the law.
(Why? Ask if you really care.) Not everyone who sees a patent ne doesn't like
can sue for a DJ, however. The [snowflake] rule is that a DJ plaintiff must have
reasonable apprehension of suit, which in turn means that the DJ defendant must
have taken an affirmative action that would strike fear into the heart of a
reasonable person. For example, if a PO sends a suspected AI a cease and desist
letter with the patent number and title and specifying the suspected products,
then the AI can start a DJ. [In which court, you may ask? In federal, as opposed
to state -- the US has a dual court system -- because patent law is a creature of
federal law. But there are 50 states and each state has one or more districts.
Which ones is a plaintiff permitted to select? That depends on two more terms of
art: jurisdiction and venue. All the law students should be able to explain both
terms. And drizzle snowflakes (sorry for the mixed metaphor) all over this
paragraph, too, and then say "And that's why they'll pay us the big bucks."]
Back to our Field Trip:
Acer is the lead AI. Gateway is also on the AI side
(plaintiff, remember, because this is a DJ). The suit is actually
three consolidated suits, which is why the caption (page 1 of
DOCS/ACER_JCC.PDF) is so complicated. The other two DJ
plaintiffs are HTC (Hitachi) and Barco, N.V.
Technology Properties Ltd (TPL) is the lead PO. The PO side
also includes Patriot Scientific and Alliacence. For more
information about the activities of TPL and Patriot, and their
relationship, see
http://www.tplgroup.net:8080/index.php?option=com_content&view=article&id=270:
patriot-scientific-and-tpl-settle-litigation&catid=1:latest-news&Itemid=50
The parent webpage also identifies Alliacence.
DJ
170630.1513 rjm