No Substantial Controversy for Declaratory Judgment Action Filed Simultaneously With Issuance of Patent

The court granted defendants' motion to dismiss plaintiff's declaratory relief action for lack of subject matter jurisdiction because plaintiff filed its lawsuit before defendants could have taken any action to enforce their patent rights. "Regardless of the precise sequence of events, or what filing date the complaint should be given, it is clear that [plaintiff] filed this action no later than virtually simultaneously with issuance of the patent. There is no indication that [defendant] did, or even could have, issued some implied or express enforcement threat so closely upon issuance of the patent such that it could be said to have taken any affirmative act to enforce its patent rights prior to the time the complaint was filed."

Danisco US, Inc. v. Novozymes A/S, et. al., 3-12-cv-04502 (CAND January 8, 2013, Order) (Seeborg, J.).