Cellco v. Broadcom (Fed. Cir. 2007).
The Verizon (Cellco) DJ action was dismissed by the district court based on a currently pending ITC action against Qualcomm. (Qualcomm makes the Cellco chips). On appeal, the CAFC affirmed dismissal.
Citing the recent Supreme Court case of MedImmune, the CAFC first found an error:
[W]e conclude that the district court erred as a matter of law in holding that no actual controversy existed between the parties, as required by the Declaratory Judgment Act, 28 U.S.C. ยง 2201(a) and Article III of the Constitution.
MedImmune, which was decided earlier this year, eliminated the CAFC’s “reasonable apprehension” test and seemingly allows the courts much broader declaratory power.
The CAFC was able to uphold the lower court’s dismissal based on the “unique and substantial discretion” discretion given courts to decide whether to hear DJ actions even when Article III jurisdiction exists. Here, the CAFC suggested that Cellco intervene in the Broadcom/Qualcomm suit involving the same patented technology.
DDC Note:
- This apparent declaratory judgment action is oddly captioned with Broadcom, the patentee, listed as plaintiff.
- The other factual quirk of this case is that Brodcom and Qualcomm have already settled several
MedImmune is opening doors in other cases as well:
- Highway Equip v. Cives Corp (D.Iowa March 7, 2007) (Article III controversy exists based on letter indicating patent infringement and absence of promise not to sue).
- Rite-Hite v. Delta-T (E.D.Wis. March 7, 2007) (Court refused to dismiss DJ action or follow the ‘reasonable apprehension of suit’ test.)
- BNSF Ry. Co. v. Box (C.D.Ill. January 18, 2007) (“a plaintiff need not expose himself or herself to liability or engage in conduct violative of the statute in question before the plaintiff could seek a declaratory judgment regarding the validity of the statute.”).