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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