Reservation of Right to Appeal Claim Construction Prompting Stipulated Judgment Does Not Create Substantial Controversy as to Declaratory

Judgment Counterclaims

The court granted plaintiff's motion to dismiss defendant's declaratory judgment counterclaims after the parties agreed to a judgment of noninfringement, reserving the right to appeal the court's claim construction. "[Defendant] suggests that [plaintiff's] avowed reservation of its right to appeal this court's claim construction, and the accompanying specter that the Federal Circuit or the Supreme Court could vacate the non-infringement judgment, is enough to make a 'definite and concrete' dispute over the [patent-in-suit]. To accept [defendant's] position, the court would have to find that its claim construction is likely erroneous, and, therefore, tacitly abandon that ruling. The court will not do so."

The Fox Group, Inc. v. Cree, Inc., et. al., 2-10-cv-00314 (VAED July 20, 2011, Order) (Smith, J.)