Declaratory judgment action is dismissed due to no controversy alleged
Innovative Therapies, Inc., v. Kinetic Concepts, Inc., et al., CA No. 07-589-SLR-LPS, July 14, 2008.
Stark, M. J. Plaintiff’s motion to dismiss for lack of subject matter jurisdiction is granted.
Defendants are designers and manufacturers of certain patented negative pressure wound therapy devices. Plaintiff develops and produces therapies in the area of patient wound care. Prior to filing suit, plaintiff contacted defendants to determine whether they could avoid litigation by consummating a business relationship between the parties. Those discussions were not successful and plaintiff filed this declaratory judgment action seeking a declaration of noninfringement and invalidity of defendants’ patents related to medical devices used in negative pressure wound therapy, violations of the Lanham Act and a declaration that plaintiff is the sole owner of its own wound treatment device and related technology. Defendants' move to dismiss the complaint for lack of subject matter jurisdiction, among other grounds. Looking to the Supreme Court’s holding in Medimmune Inc. v. Genentech, Inc., and the Federal Circuit’s recent holdings in Teva Pharms. USA, Inc. v. Novartis Pharms. Corp. and SanDisk Corp .v STMicroelectronics, Inc. the Court notes that whether a controversy is ripe depends on whether the question presented is entirely or substantially a question of law and whether postponing a decision would work a substantial hardship on the challenging party. The Court finds that plaintiff’s original complaint is required (according to SanDisk) but fails to make any allegation of an aggressive act by defendants directed toward plaintiff. The Court finds unpersuasive plaintiff’s argument that statements made by defendants regarding having knowledge of plaintiff’s FDA submissions rose to the level of an aggressive act. Without such an act, there can be no actual controversy between plaintiff and defendants. Acts made after filing do not satisfy the test articulated in SanDisk. Therefore, the Court dismisses the complaint for lack of jurisdiction.
A copy of the full opinion is available here.
