Litigation Not Related To Target CBM Patent Does Not Create A "Real And Substantial Controversy"

In a recent decision in Ocean Tomo, LLC v. Patent Ratings, LLC, CBM2015-00157, the PTAB ruled that a real and substantial controversy regarding infringement of a patent, conferring declaratory judgment standing on the petitioner to file for CBM review, is not established by a litigation not related to the patent.

In Ocean Tomo, Petitioner asserted standing for requesting a CBM review of patent 9,075,849, based on litigation in an Illinois district court between Petitioner and Patent Owner (PO). In the Illinois litigation, PO alleged that Petitioner breached a license agreement. Citing Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), Petitioner argued that PO's allegation "constitute[s] a threat that [PO] will bring suit against [Petitioner] based on [PO's] Patents and creates a reasonable apprehension by [Petitioner] that [PO] will enforce [its] Patents against [Petitioner]." Paper 17 at 7.