On March 11, 2014, in Danisco US Inc. v. Novozymes A/S, No. 2013-1214 (Fed. Cir.), the Federal Circuit held that pre-issuance conduct can be considered when determining whether a declaratory judgment defendant has instigated a case of actual controversy. The Court reversed the district court’s order dismissing the Plaintiff’s declaratory judgment action for lack of subject matter jurisdiction finding that the “totality of circumstances” including prior litigation and actions taken before the USPTO, “establishe[d] a justiciable controversy.”