Microsoft Seeks DJ Against Patent Holder Based on Customer Suits

Ury Fischer has brought to our attention a recently-filed suit in which Microsoft seeks a declaratory judgment of patent invalidity, unenforceability and non-infringement against WebXchange.  The asserted basis for the DJ action is a series of three patent infringement suits that WebXchange filed against Microsoft customers based on the customers’ use of web services created using Microsoft’s Visual Studio software.  According to Microsoft’s Complaint, a copy of which can be accessed by clicking here, the three customers had demanded that Microsoft indemnify them and “Microsoft is facing potential indemnification demands from additional customers who are sued by WebXchange for patent infringement in the future.”  Ury comments that this “is a declaratory judgment action against a patent holder who has repeatedly sued Microsoft’s customers for infringement based in Microsoft products but has carefully avoided suing or even contacting Microsoft.  It is an interesting case to follow to see how far the courts are willing to push the envelope on declaratory judgment in the wake of the Medimune case.”  Ury has agreed to keep us posted on interesting developments in this case.