UCP v. Balsam is a nonprecedential case decided on September 19, 2019 and unsealed on October 7, 2019 on appeal from the Northern District of California. Balsam sued Frontgate (a third party) alleging infringement of certain patents. After the claim construction order, the parties settled, whereby Frontgate agreed to stop purchasing the relevant product from UCP. Declaratory plaintiff UCP then sued declaratory defendant Balsam seeking a declaration of non-infringement of Balsam’s patents. The district court denied Balsam’s motion to dismiss for lack of declaratory jurisdiction because “Balsam’s litigation against Frontgate was an affirmative act by Balsam to enforce its patent rights against alleged infringement by UCP” and because “UCP demonstrated that it has already engaged in, and plans to continue engaging in, activities that Balsam has alleged infringe its [patents].” The district court granted UCP summary judgment of non-infringement, holding that UCP’s product does not infringe either literally or under the doctrine of equivalents. Balsam appealed.
The Federal Circuit found declaratory jurisdiction and vacated the summary judgment of noninfringement.
The Declaratory Judgment Act allows a potential patent infringer to bring suit when there is a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Declaratory jurisdiction “generally will not arise merely on the basis that a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement, without some affirmative act by the patentee.” An affirmative act by the patentee is “conduct that can be reasonably inferred as demonstrating intent to enforce a patent.”
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Although Balsam “never sent a notice letter, demanded royalties, or even spoke to UCP prior to UCP’s declaratory judgment action,” declaratory jurisdiction existed here. Declaratory jurisdiction may exist “where a patent holder sued a declaratory judgment plaintiff’s customers in a prior suit, and submitted claim charts in that suit implying that the declaratory judgment plaintiff could be liable for indirect infringement.” Here, “Balsam’s entire suit against Frontgate was based on its sales of UCP’s [products].” “Balsam brought suit against Frontgate in a U.S. district court on the same patents at issue in the declaratory judgment action. During that suit, Balsam also explicitly stated that it might find it necessary to sue UCP.” Declaratory jurisdiction “does not turn on whether the patentee specifically communicated with the declaratory judgment plaintiff.” Balsam’s actions demonstrated an intent to enforce its patents.
Moreover, “[t]here is no dispute that UCP was successfully selling a relatively large volume of potentially infringing [products] in the U.S. prior to filing its declaratory judgment action, creating “a strong inference that UCP had an inventory of potentially infringing [products]…at the time it filed its declaratory judgment action.”