In a non-precedential decision on Jan. 6, 2009, the Court of Appeals for the Federal Circuit affirmed a district court’s dismissal of a request by a manufacturer to have another’s patent declared invalid or not infringed, when the patent owner had not threatened the plaintiff.  The case is styled “Panavise Products, Inc. v. National Products, Inc., Case No. 2008-1444, 2009 U.S. App. LEXIS 52 (Fed. Cir. 2009).

Plaintiff Panavise argued that the district court erred by finding the lack of any communication or conduct by the patent owner toward Panavise as “dispositive.” 

The Federal Circuit, in affirming, noted that there was a lack of evidence  of an actual "controversy … based on a real and immediate injury or threat of future injury that is caused by the defendants--an objective standard that cannot be met by a purely subjective or speculative fear of future harm." 2009 U.S. App. LEXIS 52, p. 8, quoting Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1338 (Fed. Cir. 2008).  It noted that lack of direct pre-complaint communications is not sufficient to defeat subject matter jurisdiction, but that is only one factor to consider.  The court appeared to rely on the fact that Panavise did not provide any evidence that its product was similar to any product the patent owner had accused in other litigation.  Id.  There was also a declaration by the patent owner disclaiming knowledge of the Panavise product.