Monday, September 12, 2011

Court declines to serve as declaratory judgment plaintiff's private counsel

United Marine Marketing Group, LLC distributes floating docks and accessories.   Jet Dock Systems and Ocean Innovations ("Defendants") manufacture and sell a number of patented dock products.  UMMG was concerned that it might infringe Defendants' "drive-on" docks.  Problem was, Defendants hadn't made such threats against UMMG (although they had sued other entities), and UMMG didn't really identify any products it was concerned it wasn't able to sell.  Rather, UMMG was asking for a declaration the components it was selling (which, potentially, could be assembled into an infringing configuration) did not themselves infringe the patents.  This does not suffice to establish subject matter jurisdiction, as this is not an actual case or controversy:
... UMMG has failed to adequately plead a “case or controversy.”  Although UMMG contends that they are involved in an “actual dispute” with Defendants concerning whether or not they can produce, and/or sell certain floating docks, UMMG fails to identify even a single dock product which they wish to produce, and/or sell.  As a result, there is nothing for a case or controversy to be about.
* * *
While UMMG identifies certain dock components which it intends to assemble into finished docks, these dock components are not at issue in this case.  Indeed, UMMG is free to sell these individual components to whoever they choose without risk of infringing Defendants’ five patents.  On the contrary, the relevant patents in the instant case relate to finished dock products, or specific configurations of components which meet the various claims contained in Defendants’ patents. 
(It's not clear here if the Court is ruling out contributory or induced theories of patent infringement, but perhaps that's a discussion for another day.)  The Court then refused to render an advisory opinion:
Plaintiff UMMG appears to be asking this Court to serve as its private counsel, asking the Court for its advice on how to design a non-infringing dock product given the particular components at UMMG’s disposal.  As federal courts only possess the authority to decide disputes which are “definite” and “concrete,” this Court must accordingly decline to dispense such advice.  Cat Tech LLC,  528 F.3d at 881; (a plaintiff cannot “obtain a declaratory judgment merely because it would like an advisory opinion on whether it would be liable for patent infringement if it were to initiate some merely contemplated activity.” (quoting Arrowhead Indus. Water, Inc. V. Ecolochem, Inc., 846 F.2d 731, 736 (Fed.Cir.1988))).   
Finally, the Court dismissed UMMG's unfair competition claims because: (1) they improperly utilize "shotgun pleading," and (2) they boil down to allegations that Defendants' asserting their patents was unfair, which was not actionable so long as the patents were valid.

Complaint dismissed.  Plaintiff allowed 20 days to replead.

United Marine Marketing Group, LLC v. Jet Dock Systems, Inc., slip op., Case No. 8:10-cv-02653 (M.D. Fla. Sept. 6, 2011) (J. Moody)

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