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February 26, 2009

Unthreatened

Before the 2007 Supreme Court MedImmune ruling, a company worried about infringing a patent could only bite its nails and wait. But SCOTUS, in its mumbling way with patents in recent years, made Article III jurisdiction as bright-line a rule as pornography: you only know it when you see it. The CAFC Sandisk decision lowered the DJ bar further, so that infringers could be more like the vultures in a Gary Larson cartoon: "Patience? Hell, I want to kill something." But the line of "actual controversy" is still drawn in mud.

Edmunds sells cars through the web. Rival Autobytel has a patent, 6,282,517, which goes methods of communicating sales leads.

Autobytel has been actively trying to squeeze licensing nickels from'517, as patent holders are wont to do. Edmunds, spooked, shot to the Delaware courthouse to get off the first shot.

Why spooked? Companies that had purchased sales leads from Edmunds had been sued by Autobytel.

Not one not to stoop to nicking nickels for itself, Edmunds had not only sought declarations of invalidity and noninfringement, it asked for attorney's fees and costs. "I had the lobster while you had a salad. No, please, you take the check." Car salesmanship must be something in the blood, the "little weasel" gene activated.

Analogizing to the last hooker it picked up at the Gentleman's Club, Edmunds had called the actual controversy standard "broad and permissive." This after hemming and hawing over whether an infringement suit was imminent, or that Autobtyel had even considered Edmunds to be infringing '517.

Judge Sue L. Robinson was straight-laced about booting Edmunds out, saying it had not supported "the proposition that the absence of an overt, specific act is not a significant hurdle in finding jurisdiction under the Declaratory Judgment Act."

Now would be an ironically good time for Autobytel to pimp its goods.

Posted by Patent Hawk at February 26, 2009 9:56 PM | Declaratory Judgment

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