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The Intellectual Property StrategistFeaturesIntellectual PropertyLitigation

Sender Beware: Jurisdictional Risks of Pre-Litigation Communications

By Sarah Benowich
October 01, 2021

The Federal Circuit recently clarified — and lowered — the threshold to exercise specific personal jurisdiction over an out of state declaratory judgment defendant. In Trimble Inc., Innovative Software Engineering, LLC v. PerDiemCo LLC, the Federal Circuit reiterated that there is "no general rule that demand letters can never create specific personal jurisdiction" and reversed the district court's dismissal of a declaratory judgment action for lack of personal jurisdiction where the parties had engaged in extensive pre-litigation communications. 997 F.3d 1147, 2021 U.S. App. LEXIS 13985, at 16 (Fed. Cir. 2021). Trimble highlights several key trends and practical takeaways for parties and practitioners alike, including a lesson in being cautious, conscientious, and strategic when engaging in pre-litigation communications including cease-and-desist letters.

Factual Background

This case arose after PerDiemCo LLC (PDC) sent a cease-and-desist letter (C&D) to Innovative Software Engineering, LLC (ISE), which is wholly owned by Trimble Inc. (Trimble).

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