Startling Jurisdiction Expansion?: 'At War' Standard Modifies 'Case-or-Controversy' Requirement

摘要

The stark evolution of Article Ⅲ case-or-controversy jurisdiction since Medlmmune could be practice changing. The old "reasonable-apprehension-of-suit" test apparently has given way to a new, much more liberal, "at war" standard. Consider the following questions when evaluating whether Danisco provides a new tool for your arsenal: 1. What is the new threshold for "at war" status in competitor versus competitor suits? Clearly, Apple and Samsung are "at war" in the ongoing cellphone wars. How do parties transition from "vigorous competitors" to "at war" for purposes of determining declaratory judgment jurisdiction? Does the existence of a ground-breaking patent that will rock the market provide a greater factual basis for an "at war" determination than a patent that advances the art only incrementally?