Levine on Declaratory Relief After MedImmune

David Levine (with Charles Belle) has published an article called "Declaratory Relief After MedImmune," 14 Lewis & Clark L. Rev. 491 (2010). Here is the abstract:

In MedImmune, Inc. v. Genentech, Inc., the Supreme Court of the United States rejected the Federal Circuit’s “reasonable apprehension of imminent suit” test for determining the existence of a justiciable controversy in actions for declaratory relief involving alleged or potential patent infringement. The Supreme Court substituted the totality-of circumstances test, which has long been used trans-substantively inactions for declaratory relief. Justice Clarence Thomas, the lone dissenter,contended that the majority’s holding would allow parties to seek improper advisory opinions. This Article evaluates MedImmune’s impact on declaratory judgment actions in patent litigation and considers whether Justice Thomas’s prediction was accurate. To do so, this Article compares how the Federal Circuit and other federal courts addressed justiciability in patent cases in the three years before and after the Supreme Court announced its MedImmune decision in January 2007. The Article also examines how lower courts have (and have not)utilized their discretion to decline to hear actions for declaratory relief inpatent litigation. In sum, MedImmune appears to have had the results desired by the Court majority: (1) Parties can more easily demonstrate the existence of a controversy in order to question arguably coercive measures by patentees in court; and (2) The lower courts have adhered to a reasonable notion of when a sufficiently concrete controversy exists, even though they have not utilized the discretion to decline actions for declaratory relief as often as they might. Justice Thomas’s concern that MedImmune would unleash a torrent of hypothetical actions in and out of the realm of patent litigation does not appear to be coming to fruition.

Here's the link: http://www.lclark.edu/law/law_reviews/lewis_and_clark_law_review/current_issues.php