A new case,
Litecubes, LLC v. N. Light Prods., 2008 U.S. App. LEXIS 9166, 29-37 (Fed. Cir. Apr. 28, 2008), attempts to clarify the “often-confused boundary between elements of a federal claim, which must be established before relief can be granted, and the requirements for establishing subject matter jurisdiction.” The court held that whether the allegedly infringing act happened in the is an element of the claim for patent infringement, not a prerequisite for subject matter jurisdiction.
It held that here was no need for the district court to consider whether products were imported into the in order to determine whether it had jurisdiction. Litecubes, by alleging a violation of
35 U.S.C. § 271(a) (which provides that "[e]xcept as otherwise provided . . . whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefore, infringes the patent") has properly invoked federal question jurisdiction under § 1331 and § 1338. Jurisdiction does not depend on whether Litecubes is able to succeed on the merits in proving all of the elements of patent infringement alleged in the complaint.