It’s de novo `cause I say so.

Not knowing the facts, let me jump right to a conclusion about the CAFC reversal in Sony, et al v. Guardian.  If 27 of the 35 pages of the opinion detail ‘facts,’ then one may find odd the finding that “Because the relevant facts are undisputed, we review de novo.”  Indeed, is de novo the standard of review for a denial of declaratory jurisdiction?

The Sony v. Guardian decision attributes the de novo standard to its earlier rulings in SanDisk v. STM (CAFC 2007) and Arrowhead v. Ecolochem.   In STM though, the stated standards were “plenary appellate review” on the law, and review of “underlying factual findings for clear error.” STM cited back to Gen-Probe v. Vysis, which confirms Supreme Court precedent that declaratory jurisdiction issues are “inherently fact-specific.”  It holds that the CAFC “may not disturb factual findings, including those on a reasonable apprehension of suit, unless they are clearly erroneous.”   The Sony panel appears to disagree, de novo, with the “factual findings” of no reasonable apprehension.

How often has the criticism been made about the CAFC using the de novo standard as an end-justifies-the-means approach to ‘achieving uniformity’ in patent law matters?  One need not disagree with the result in Sony, but might view it as a result-oriented analysis overlying the de novo standard.   The threshold to applying that standard in Sony was accepting the appeal issue as a dismissal for lack of subject matter jurisdiction, rather than as a discretionary refusal to exercise declaratory jurisdiction over the suit.  However the ruling below is cast, it relied wholly on a factual assessment of the “sufficient immediacy” and “reasonable apprehension” contentions, which again, it seems impossible to believe were, as the CAFC panel viewed them, “undisputed.”  Wearing de novo glasses alters that view.