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Cat Tech LLC v. TubeMaster, Inc. - 528 F.3d 871 (Fed. Cir. 2008)


A party may not 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. Thus, although a party need not have engaged in the actual manufacture or sale of a potentially infringing product to obtain a declaratory judgment of non-infringement, there must be a showing of meaningful preparation for making or using that product. In general, the greater the length of time before potentially infringing activity is expected to occur, the more likely the case lacks the requisite immediacy. 


The alleged infringer used its device once, and selected one of four loading device configurations it had developed, after it received the dimensions for the device from its customer. The patent holder brought suit, alleging the configuration infringed its patent. 


Did the alleged infringing product meet the spacing element of the patent, therefore not warranting a declaratory judgement of noninfringement?




The patent claims defined the invention based on the spacing between adjacent plates. The spacing limitation of the relevant claims required a spacing that was not large enough to allow whole particles to fall through. The alleged infringing configuration used spacing that allowed whole catalyst particles to fall through, and therefore did not meet the spacing limitation. Constitutionally mandated immediacy requirements were satisfied, because once the threat of liability to the patentee was lifted, the alleged infringer could expeditiously solicit and fill orders for loading devices with a substantially fixed technology. Because the district court correctly construed the spacing element of the patent, and the dispute was sufficiently real and immediate to warrant a declaratory judgment of noninfringement, the appellate court affirmed the judgment.

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