Keker, Van Nest & Peters partner Katie Lynn Joyce spoke with Law360 about the growing use of declaratory judgment actions by companies facing patent litigation threats. Joyce represented Comcast in a declaratory judgment action against Novacloud Licensing LLC that ended in a settlement this month. In the article, she explained how these actions allow companies to take the initiative against threatened litigation, control the timing and forum, and demonstrate that they are prepared to challenge potentially meritless infringement claims.
"The point of them is to take the first punch and show that you're serious about disputing the threat of infringement that has already been lobbed against you internally, and that you're not just going to roll over to something that could be a completely frivolous claim," she said.
According to Law360’s analysis, federal courts recorded 353 patent declaratory judgment actions in 2025, the highest number in more than a decade. More than 200 were filed during the first eight months of 2026.
This increase coincides with declining institution rates for inter partes review proceedings before the Patent Trial and Appeal Board. As IPRs become a less reliable option for patent challenges, declaratory judgment actions are giving companies an opening to go on the offensive.
"Patent trolls have gotten more litigious even than they already were, and that has led to companies seeking declaratory judgment relief, especially now that IPR institution rates have plummeted,” Joyce said.
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