Pleading standards for patent-related declaratory judgment in the USA

Abstract

In the USA, a claim for declaratory judgment can be used to establish that a patent is invalid or that there is no infringement. It can be brought by a potential infringer as an initial claim before they face a patent infringement lawsuit. Alternatively, it can be raised as a counterclaim after a patent infringement lawsuit has commenced. Filing a declaratory judgment action can be an attractive option for a variety of reasons, the most common of which is a party expecting to face a patent infringement suit using declaratory judgment to beat the patentee to venue selection by filing first. This choice of venue can have a great impact on strategic considerations by both parties. For example, declaratory judgment plaintiffs should be aware of pleading pitfalls that vary widely based on jurisdiction. On the other hand, a party facing a declaratory judgment claim should also be aware of such...