The Federal Circuit has held that a licensee in good standing cannot bring suit in federal court seeking a declaration that the licensed patent is invalid or unenforceable. I think that’s right, and I’ve written an amicus brief that I am writing on behalf of law professors (mostly IP types) to file with the Supreme Court in favor of the respondents’ position. I’d love to have your feedback on the brief.

To me, it’s a simple lack of statutory basis for jurisdiction, but I also think that as a matter of policy — were this an issue for the courts — that allowing a licensee in good standing to sue for a declaration of invalidity without at the same time incurring liability as an infringer is a very bad idea. It will, I think, lead to less patenting and less licensing, at least at the margins.

Thoughts?

Today’s post comes from Guest Barista David Hricik, an Associate Professor of Law with the Walter F. George School of Law, Mercer University, in Macon, Georgia.

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