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FRIDAY, AUGUST 26, 2011

Order Denying Motion to Dismiss Complaint for Declaratory Judgment

GKemira Chemicals, Inc. v. Nalco Company, 1:11-cv-00718 (N.D. Ga. June 20, 2011) (Batten, J.)

Upon consideration of Defendant Nalco’s alleged conduct with respect to Plaintiff Kemira and two of Kemira’s potential customers, the Court found that a substantial controversy existed between the parties sufficient to provide subject matter jurisdiction for Kemira’s declaratory judgment action.

USpecifically, Nalco (a direct competitor of Kemira in the sale of chemicals used to manufacture paper) sent letters to Kemira and its customers that identified and enclosed Nalco’s patent and allowed patent application and mentioned a particular Kemira product that the customers expressed an interest in purchasing. Even though Nalco’s communications did not explicitly threaten litigation, the Court determined that “the totality of the circumstances showed that [Nalco’s] conduct can reasonably be inferred as threatening litigation.” (Page 11.) Accordingly, the Court held that Kemira met its burden to demonstrate the existence of an actual case or controversy and denied Nalco’s motion to dismiss the complaint.