Document type: Toolkit Practice area: Litigation — Federal Practice Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Declaratory practice is unusually template-friendly, because the same handful of questions recur: is there a controversy, is there jurisdiction, should the court exercise it, and who filed first. What follows is working language for each, with notes on what it is doing.

Every template here needs adaptation. The controversy allegations in particular must reflect the actual record; generic controversy pleading is the most common reason a declaratory complaint fails.

1. Declaratory judgment complaint — skeleton with drafting notes

UNITED STATES DISTRICT COURT
[DISTRICT]

[PLAINTIFF],                          Civil Action No. ______
     Plaintiff,
v.                                    COMPLAINT FOR
                                      DECLARATORY JUDGMENT
[DEFENDANT],
     Defendant.                       JURY TRIAL DEMANDED


                        NATURE OF THE ACTION

1. This is an action for a declaratory judgment under 28 U.S.C.
§§ 2201 and 2202 that [specific proposition — e.g., "Plaintiff's
ARBOR-7 controller does not infringe any valid claim of U.S. Patent
No. X,XXX,XXX"].

2. Defendant has repeatedly asserted that Plaintiff's [product /
conduct] [infringes / breaches / falls outside coverage], has
[demanded a license / notified Plaintiff's customers / reserved
rights], and has [threatened litigation / set a deadline].
Plaintiff disagrees. An actual controversy exists.

3. [One paragraph on the business consequence: what Plaintiff
cannot do while the uncertainty persists. Be concrete — a delayed
launch, a financing condition, customers demanding indemnity.]

                            PARTIES

4-5. [Standard.]

                    JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1338(a) because the coercive action Defendant could
bring — an action for patent infringement — arises under the
patent laws. [OR, for diversity:] under 28 U.S.C. § 1332 because
the parties are citizens of different States and the matter in
controversy exceeds $75,000, exclusive of interest and costs. The
value of the right at stake is [basis], as set out at ¶¶ __.

7. This Court has personal jurisdiction over Defendant because
[specific contacts — not a recitation of the long-arm statute].

8. Venue is proper under 28 U.S.C. § 1391(b) because [basis].

                    FACTS ESTABLISHING AN
                     ACTUAL CONTROVERSY

9. [Date.] Defendant sent Plaintiff a letter [Exhibit A] stating
[quote the operative language].

10. [Date.] Defendant [sent a claim chart / demanded a royalty of
__% / identified the ARBOR-7 by name].

11. [Date.] Defendant contacted Plaintiff's customer [name],
stating [quote].

12. [Date.] Counsel conferred by telephone. Defendant's counsel
stated [content].

13. Defendant has filed [N] infringement actions asserting the
same patent against similar products. [Cite the dockets.]

14. As a result, Plaintiff [has been unable to close a supply
agreement / faces indemnity demands / has delayed the ARBOR-8
launch].

15. An actual and justiciable controversy of sufficient immediacy
and reality exists between the parties within the meaning of 28
U.S.C. § 2201 and Article III.

              COUNT I — DECLARATORY JUDGMENT OF
                      NON-INFRINGEMENT

16. Plaintiff incorporates ¶¶ 1-15.

17. [State the non-infringement basis with specificity — the
element that is missing, the construction that defeats the claim.]

18. Plaintiff is entitled to a declaration that the ARBOR-7
controller does not infringe any claim of the '123 patent,
directly or indirectly, literally or under the doctrine of
equivalents.

              COUNT II — DECLARATORY JUDGMENT OF
                         INVALIDITY

19-22. [Same structure. Identify the grounds. Do not plead
invalidity generically; a bare recitation of §§ 101, 102, 103,
and 112 invites a motion.]

                      PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests:
A. A declaration that [proposition 1];
B. A declaration that [proposition 2];
C. A finding that this is an exceptional case under 35 U.S.C.
§ 285 and an award of fees;
D. Costs; and
E. Such further relief as the Court deems proper, including
further necessary or proper relief under 28 U.S.C. § 2202.

                       JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.

Drafting notes.

Paragraphs 9–14 are the complaint. Everything else is form. A declaratory complaint that says "Defendant has asserted that Plaintiff infringes" and stops will draw a Rule 12(b)(1) motion, and it may lose it. Plead the communications with dates, quote the operative language, and attach the letter.

Paragraph 14 is the one most often omitted. Courts decline declaratory jurisdiction where the declaration would change nothing. Say what it changes.

Paragraph 6 must identify the hypothetical coercive action. 28 U.S.C. § 2201 supplies the remedy; jurisdiction comes from § 1331, § 1332, or a specific grant, and in a declaratory case it is measured by the suit the defendant would have brought.

Each requested declaration should be a separate proposition. "A declaration of the parties' rights under the agreement" is not a request a court can grant. "A declaration that Section 7.2 permits termination on ninety days' notice without cause" is.

Do not overreach on the number of declarations. A complaint requesting eleven declarations, six of which will never be presented, is an argument for discretionary dismissal.

2. Covenant not to sue — drafted to moot

The covenant is the declaratory defendant's exit. To work, it must be broad enough that no controversy survives. A narrow covenant leaves the case alive and gives up ground for nothing.

COVENANT NOT TO SUE

[Grantor], on behalf of itself and its parents, subsidiaries,
affiliates, successors, and assigns, and any party to whom it
assigns or licenses the Patents (collectively, "Grantor
Parties"), irrevocably covenants not to assert against [Grantee],
its parents, subsidiaries, affiliates, successors, assigns,
distributors, resellers, suppliers, and customers (collectively,
"Grantee Parties") any claim of infringement of U.S. Patent Nos.
X,XXX,XXX and Y,YYY,YYY (the "Patents"), whether direct,
indirect, contributory, induced, literal, or under the doctrine
of equivalents, based on:

(a) the manufacture, use, sale, offer for sale, importation, or
    distribution of the ARBOR-7 controller as it exists on the
    date of this Covenant;

(b) any product that is not colorably different from the ARBOR-7
    controller with respect to the claims of the Patents; and

(c) any such activity occurring before or after the date of this
    Covenant.

This Covenant runs with the Patents, binds any successor in
interest, and may be recorded. Grantor shall include this
Covenant in any assignment, exclusive license, or security
interest in the Patents.

This Covenant is granted without any admission and without
consideration flowing to Grantee.

Drafting notes.

"Not colorably different" is the load-bearing phrase. A covenant limited to the product "as it exists today" does not moot a controversy over the next version, and the declaratory plaintiff will say so.

Customers and distributors must be covered. A covenant that protects the manufacturer but leaves customers exposed does not moot the manufacturer's case, because indemnity obligations keep the controversy alive.

Past conduct must be covered. A covenant that runs only forward leaves a damages claim alive.

"Runs with the Patents" prevents the obvious workaround — assigning the patents to an entity not bound by the covenant.

Know what you are giving up. This is permanent as to what it covers. A grantor that later develops a stronger infringement theory against the same product has no remedy. Draft it when mooting is genuinely preferable to litigating, and not before.

3. Standstill agreement — model

STANDSTILL AND TOLLING AGREEMENT

This Agreement is made as of [date] between [Party A] and
[Party B] (each a "Party").

RECITALS. Party A has asserted that Party B [description of
assertion]. Party B disputes the assertion. The Parties wish to
evaluate the matter and explore resolution without the expense
and disruption of litigation.

1. TOLLING. All statutes of limitations, statutes of repose,
laches periods, and any other time-based defenses applicable to
any claim between the Parties arising from the subject matter of
the Recitals are tolled from the Effective Date through the
Termination Date plus the Notice Period. No Party shall argue
that the passage of time during that interval supports any such
defense.

2. FORBEARANCE. During the Standstill Period, neither Party
shall commence any Proceeding against the other or against the
other's customers, distributors, resellers, or suppliers with
respect to the subject matter of the Recitals. "Proceeding"
means any civil action in any court, any arbitration or
mediation demand, any proceeding before the U.S. International
Trade Commission, any administrative or regulatory complaint,
any domain name dispute proceeding, and any action before any
foreign tribunal or authority.

3. TERM AND TERMINATION. The Standstill Period begins on the
Effective Date and continues for [ninety (90)] days, and may be
extended by written agreement. Either Party may terminate on
written notice. The Termination Date is the date such notice is
received.

4. NOTICE PERIOD. After the Termination Date, neither Party
shall commence any Proceeding for [ten (10)] business days (the
"Notice Period").

5. INFORMATION EXCHANGE. Within [thirty (30)] days, Party A
shall provide [claim charts / license terms / the documents
supporting its assertion] and Party B shall provide [technical
documentation / financial information / prior art]. Information
exchanged is Confidential Information subject to Section 6.

6. CONFIDENTIALITY AND NO PREJUDICE. All communications and
materials exchanged under this Agreement are confidential,
constitute settlement communications under Federal Rule of
Evidence 408 and any comparable state rule, are inadmissible for
any purpose other than enforcing this Agreement, and are not
admissions or waivers.

7. NO ADMISSION. Neither entry into this Agreement nor any
conduct under it is an admission of liability, of the merit of
any claim or defense, of jurisdiction, of venue, or of the
existence of an actual controversy.

8. PRESERVATION. Each Party shall preserve documents and
communications relevant to the subject matter of the Recitals
during the Standstill Period.

9. MISCELLANEOUS. [Governing law; counterparts; authority;
entire agreement; amendment in writing.]

Drafting notes.

Section 2's definition of "Proceeding" is where these agreements are won and lost. A standstill that forbids "litigation" without defining it does not clearly cover an ITC complaint, and the ITC complaint is exactly what a sophisticated patentee will file.

Customer suits must be covered. They are the standard end run.

Section 7 matters more than it looks. Without it, the fact of entering a standstill can be argued as evidence that a controversy existed on the date of the agreement — which is the declaratory plaintiff's whole case.

Ten business days is the shortest defensible Notice Period. Anything shorter is an ambush with paperwork, and a court applying the anticipatory-filing exception will treat it as one.

4. Motion for discretionary dismissal or stay — brief outline

For the declaratory defendant seeking relief under Wilton v. Seven Falls Co., 515 U.S. 277 (1995) and Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942).

I.   INTRODUCTION
     One paragraph. What the parallel proceeding is, why it is
     more comprehensive, and what the Court should do.

II.  BACKGROUND
     A. The underlying dispute
     B. The [state / other federal] proceeding — parties, claims,
        posture, schedule
     C. This declaratory action — filed [date], [N] days after
        [triggering event]

III. LEGAL STANDARD
     The Declaratory Judgment Act confers discretion, not an
     obligation. Wilton; Brillhart. The standard is not the
     "exceptional circumstances" test of Colorado River.

IV.  ARGUMENT

     A. A parallel proceeding will resolve the same issues
        between the same parties.
        [Chart the overlap: parties, claims, issues.]

     B. The [other] proceeding is more comprehensive.
        [Identify claims the other forum can resolve and this
        one cannot — bad faith, extracontractual damages,
        additional parties, state-law claims.]

     C. This action will not settle the entire controversy.
        [What remains unresolved if the declaration issues.]

     D. The action was filed for procedural advantage.
        [Timeline. See § 5 below.]

     E. Retaining the action risks inconsistent judgments and
        duplicative discovery.

     F. [If applicable] Unsettled questions of state law are
        better resolved by the state court.

V.   CONCLUSION
     Dismiss, or in the alternative stay pending resolution of
     the [other] proceeding.

Drafting notes.

These motions are won on the factual record, not the doctrine. The doctrine is a list of factors; every brief recites it. The brief that wins shows, concretely, that the other proceeding resolves more.

Ask for a stay in the alternative. A court reluctant to dismiss will often stay, and a stay usually accomplishes the same thing.

Do not lead with the anticipatory-filing argument unless the timeline is genuinely damning. Lead with comprehensiveness, which is the factor courts weigh most heavily, and put the timeline in as support.

5. Anticipatory-filing timeline exhibit

The single most effective document in a first-filed dispute is a one-page timeline. Format it as a table and attach it to the motion.

Date Time Event Source
Mar 3 — Defendant sends demand letter identifying the '123 patent and the ARBOR-7; requests response by Mar 24 Ex. A
Mar 8 2:14 p.m. Plaintiff's counsel emails: "We are evaluating and will respond by your date." Ex. B
Mar 12 — Counsel confer; Plaintiff requests a two-week extension "to complete our analysis" Ex. C
Mar 14 — Defendant grants extension to Apr 7 Ex. D
Mar 19 4:51 p.m. Plaintiff files this declaratory action Dkt. 1
Mar 20 — Plaintiff's counsel emails: "Still working on our analysis." Ex. E
Apr 2 — Defendant files infringement action in [preferred district] [Docket]

Drafting notes.

Times matter. Where two complaints are filed on the same day, the timestamp decides the first-filed question, and courts have decided cases on hours.

Include the post-filing communication if there is one. A representation that the party is still evaluating, sent after it has already filed, does more work than any brief.

Attach the exhibits. A timeline without record citations is argument. A timeline with them is evidence.

Be accurate. A timeline that shades a date is the fastest way to lose credibility on a motion that turns entirely on credibility.

6. Demand letter drafted to avoid triggering a declaratory filing

The problem: a letter specific enough to be taken seriously may create a controversy the recipient can use to file. Letters that thread the needle share these features.

Dear [Recipient]:

We represent [Client] in connection with its intellectual
property portfolio, including U.S. Patent No. X,XXX,XXX.

[Client] has an active licensing program for this portfolio, and
several companies in your sector have taken licenses. We are
writing to open a discussion about whether a license would be
appropriate for [Recipient].

We would welcome a conversation. If it would be useful, we can
provide additional information about the portfolio and the terms
on which licenses have been granted.

Please let us know a convenient time in the next several weeks.

Very truly yours,

Drafting notes.

This letter does not assert infringement, identify a product, or set a deadline. Under MedImmune the totality of circumstances governs, so no letter is immune — but a letter that offers a license without accusing anyone is meaningfully less likely to create a controversy than one attaching a claim chart and demanding a response in fourteen days.

The tradeoff is real. A letter this soft may be ignored. Where the client wants to be taken seriously, accept that a controversy may arise and plan for it: have the coercive complaint drafted and ready to file, so that if a declaratory action lands you can respond within days.

Never set a deadline you do not intend to enforce. A deadline is the clearest evidence of a threat, and it is the fact courts cite most often when applying the anticipatory-filing exception.

If a standstill is acceptable, propose it in the letter. It converts the race into a conversation.

7. Client decision memorandum — template

MEMORANDUM

To:      [Client]
From:    [Counsel]
Date:    [Date]
Re:      Whether to file a declaratory judgment action against
         [Adverse Party]
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

1. RECOMMENDATION
   [One sentence. File / do not file / propose a standstill.]

2. THE DISPUTE
   [Three sentences. What they assert; what we say; what is at
   stake commercially.]

3. IS THERE A CONTROVERSY?
   [Assessment under MedImmune with the specific facts. State a
   confidence level.]

4. IS THERE FEDERAL JURISDICTION?
   [The hypothetical coercive action; the statutory basis;
   venue; personal jurisdiction in the proposed forum.]

5. THE MERITS
   [The substantive assessment. This is the section that should
   be longest, and the one most often missing. If we would lose,
   say so.]

6. FORUM
   [Proposed district and why. Connection to the dispute.
   Anticipatory-filing risk.]

7. WHAT FILING BUYS
   [Concrete. Forum, timing, an end date on the uncertainty,
   the unblocking of a specific business decision.]

8. WHAT FILING COSTS
   [Budget through the first dispositive ruling. Expected
   counterclaims and their exposure. Relationship consequences.]

9. ALTERNATIVES
   [Respond substantively. Propose a standstill. Seek a
   covenant. Do nothing. For each: what happens.]

10. WHAT WE NEED FROM YOU
    [Decision, by when, and any information still outstanding.]

Drafting notes.

Section 5 is the one that gets skipped and should not be. A declaratory action filed without a merits assessment is an expensive way to discover a weak position.

Section 10 forces a decision date. Declaratory matters are lost to drift more often than to error; the other side files while the client is still deciding.

8. Quick-reference: which motion, when

Situation Vehicle Key authority
No assertion of rights, only communications Rule 12(b)(1) — no actual controversy MedImmune
Federal issue appears only as a defense Rule 12(b)(1) — no independent jurisdiction 28 U.S.C. § 2201
Parallel, more comprehensive state proceeding Motion to dismiss or stay — discretion Wilton; Brillhart
Declaratory suit filed just before your coercive suit Motion to dismiss or transfer — anticipatory filing First-filed rule and its exception
Better forum available 28 U.S.C. § 1404(a) transfer Convenience factors
Controversy can be eliminated Covenant not to sue plus motion to dismiss as moot Mootness
Arbitration clause covers the dispute Motion to compel arbitration 9 U.S.C. § 4
Partial resolution, need to appeal Rule 54(b) certification Finality

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This toolkit is general information, not legal advice, and does not create an attorney-client relationship. Templates require adaptation by counsel to the facts, jurisdiction, and governing law of the specific matter.