Passage of Time Does Not Render Substantial Controversy Stale

The court denied defendant's motion to dismiss plaintiff's declaratory relief claims for lack of subject matter jurisdiction. "Plaintiff has not alleged that defendant communicated with plaintiff at all before initiating this lawsuit. Nevertheless, plaintiff demonstrates that defendant has 'engaged in a course of conduct... show[ing] a preparedness and willingness to enforce his patent rights.' Indeed, defendant has: (1) identified the [patent-in-suit]; (2) asserted he is the owner of the [patent]; (3) identified plaintiff’s competing product . . . (4) asserted that plaintiff’s 'design' . . . is 'a copy of the [product covered by the patent]'; and (5) sued others in the past for purportedly infringing on his [patent]. . . . [D]efendant fails to cite any authority establishing that a two (or three year old) assertion, proffered as evidence, necessarily becomes stale. Indeed, the Court finds that the passage of time does not, by default, deprive this Court of declaratory judgment jurisdiction since the relevant circumstances of this case have not changed despite the passage of time. Put simply, defendant’s previous statements continue to validate plaintiff’s reasonable apprehension of being a possible infringer even though defendant is not currently 'poised on the courthouse steps' to sue plaintiff for infringement . . ."

SB Diversified Products, Inc. v. Murchison, 3-12-cv-02328 (CASD July 28, 2014, Order) (Houston, J.)