A recent decision from the U.S. Court of Appeals for the Federal Circuit makes it even more difficult for patent holders seeking to open talks with a potential infringer to avoid becoming the target of a declaratory judgment action. Such is the takeaway from the Dec. 4 ruling in Hewlett-Packard Company v. Acceleron.1
The background to the case is a familiar one to patent litigators: Acceleron, a patent holding company, acquired a patent and several months later sent a letter to Hewlett-Packard about it, noting that the patent related to blade servers. As “demand” letters go, it was relatively mild, asking HP for “an opportunity to discuss this patent with you.” It also included a request: that HP agree that all of the information the parties were to exchange “will not be used for any litigation purposes whatsoever, including but not limited to any claim that Acceleron has asserted any rights against any of your ongoing or planned activities, or otherwise created any actual case or controversy regarding the enclosed patent.”
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