A REASONABLE APPREHENSION OF LAWSUIT: A RESTRICTIVE THRESHOLD FOR FEDERAL COURT JURISDICTION IN PATENT DECLARATORY JUDGMENTS

7 Wake Forest Intell. Prop. L.J. 1

This article analyzes the Federal Circuit’s reasonable apprehension of lawsuit standard for declaratory judgment jurisdiction, currently pending before the Supreme Court in Medimmune, Inc. v. Genentech, Inc., 427 F.3d 958 (Fed. Cir. 2005), cert. granted, 126 S. Ct. 1329 (U.S. Feb. 21, 2006) (No. 05-608). Arguments were heard on October 4, 2006.

The article begins by discussing the history of declaratory judgments beginning with the constitutional standard as it evolved among the Circuit Courts. It then surveys the plaintiff’s burden of establishing federal court standing. In analyzing the Federal Circuit’s reasonable apprehension of lawsuit test for declaratory judgment jurisdiction, the author argues that the reasonable apprehension of lawsuit standard is not a complete proxy for standing. Instead, the author argues that a straightforward standing analysis would be more appropriate.

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