If Patent Troll Sends the Letter, Then a Case-or-Controversy “Implicitly” is Asserted.

 The CAFC reversed the dismissal of a DJ action, noting that it was a close case for jurisdiction, but the scales tipped due to the notice letter coming from a “non-competitor patent holding company.”  (N/K/A, “no-co-pho-co” which I find has an alliterative syncopation more appealling than ‘patent troll’).                                    So, it is not what was said, but who said it.  Plaintiff Acceleron’s letter “did not contain language threatening to sue for infringement or demand a license.”  It expressly was intended to provide “both parties with appropriate protections to create a productive atmosphere” to discuss the noted patent.  Where’s the case?      Judge Robinson in Delaware ruled that litigation was “too speculative a prospect” to exercise DJ jurisdiction.  The CAFC, in an opinion by C.J. Michel, disagreed and reversed.  It decided it was “not unreasonable for HP to interpret Acceleron’s letters as implicitly asserting” its patent rights. (‘I can tell what you’re thinking, even if you’re not saying it’).  In the conclusion of the ruling, the panel notes that its decision “undoubtedly marks a shift from past declaratory judgment cases,” and a “jurisprudence [that] must …evolve.” A moderate shift of the techtonic plates, but evolution to the one advanced is revolution to those comfortable with the past.   For a CAFC panel to feel empowered by the Supreme Court’s reversal in the Medimmune decision is evolutionary or shifty.                                                                           The case is HP v. Acceleron, 09-1283 (Fed. Cir. 12/4/09).