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Novartis Pharmaceuticals Corporation v. Mylan Inc.

United States District Court, D. Delaware

March 16, 2015

NOVARTIS PHARMACEUTICALS CORPORATION, et al., Plaintiffs,
v.
MYLAN INC., et al., Defendants. NOVARTIS PHARMACEUTICALS CORPORATION, et al., Plaintiffs,
v.
MYLAN INC., et al., Defendants.

MEMORANDUM

RICHARD G. ANDREWS, District Judge.

I have pending motions to dismiss for lack of personal jurisdiction in the two above-captioned cases, filed by Defendants Mylan Inc. and Mylan Pharmaceuticals Inc. (No. 14-777-RGA, D.I. 14; No. 14-820-RGA, D.I. 14).

Background.

On November 3, 2011, Novartis Pharmaceuticals Corp., Novartis AG, Novartis Pharma AG, Novartis International Pharmaceuticals Ltd., and LTS Lohmann Therapie-Systeme AG (collectively, "Novartis") filed an ANDA suit against Actavis South Atlantic LLC and Actavis, Inc. (No. 11-1077-RGA). Novartis Pharmaceuticals Corp. is a Delaware corporation with a principal place of business in New Jersey. The other Novartis corporations are Swiss, Bermudan, or German, with principal places of business in those countries. (No. 11-1077-RGA, D.I. 1, ¶¶ 2-6). Novartis asserted three patents (the '176, the '023, and the '031) which protected its branded Exelon Patch product, a rivastigmine transdermal patch. Actavis South Atlantic is a Delaware limited liability company with a place of business in Florida, and Actavis, Inc. is a Delaware corporation with a place of business in New Jersey. ( Id., ¶¶ 7, 8). Par later was substituted in for Actavis. (No. 11-1077-RGA, D.I. 196). I held a fourteen hour trial in May 2014, and ruled in Par's favor on August 29, 2014. (No. 11-1077-RGA, D.I. 426). The case (including related case Nos. 13-371-RGA, 13-1467-RGA, and 14-843-RGA) is now on appeal to the Federal Circuit. (Nos. 15-1061, 15-1062, 15-1120 & 15-1121).

On November 9, 2011, Novartis filed an ANDA suit against Watson Laboratories, Inc., Watson Pharma, Inc., and Watson Pharmaceuticals, Inc., asserting the same patents against a proposed rivastigmine transdermal patch. (No. 11-1112-RGA). Watson Pharma, Inc. is a Delaware corporation having a place of business in New Jersey. (No. 11-1112-RGA, D.I. 1, ¶ 8). The other two defendants are Nevada corporations with places of business in New Jersey. ( Id., ¶¶ 7, 9). I held a twenty-one hour trial in August 2013, and ruled in Novartis's favor on June 18, 2014. (No. 11-1112-RGA, D.I. 40). The case is now on appeal to the Federal Circuit. (Nos. 14-1799, 14-1800, 15-1141).

On January 4, 2013, Novartis filed an ANDA suit against Alvogen Pine Brook, Inc., and Alvogen Group, Inc. asserting the '023 and '031 patents against a proposed rivastigmine transdermal patch. (No. 13-52-RGA). Both defendants are Delaware corporations with places of business in New Jersey. (No. 13-52-RGA, D.I. 1, ¶¶ 7, 8). The case (including a related case, No. 13-370-RGA) was resolved by agreement in July 2014. (No. 13-52-RGA, D.I. 177, 178).

On April 3, 2013, Novartis filed an ANDA suit against Noven Pharmaceuticals, Inc., Noven Therapeutics, LLC, and Hisamitsu Pharmaceutical Co., Inc., asserting the '023 and '031 patents against a proposed rivastigmine transdermal patch.[1] (No. 13-527-RGA). The Noven defendants are Delaware corporations with places of business in Florida. Hisamitsu is a Japanese corporation. (D.I. 13-527-RGA, D.I. 1, ¶¶ 7-9). I held a fourteen hour trial in December 2014, and the case (including a related case, No. 14-111-RGA) is now under advisement.

On June 19, 2014, four of the five Novartis corporations filed an ANDA suit against Mylan Inc. and Mylan Pharmaceuticals Inc., asserting the '023 and '031 patents against a proposed rivastigmine transdermal patch.[2] (No. 14-777-RGA). Mylan Inc. is a Pennsylvania corporation having a place of business in West Virginia, and Mylan Pharmaceuticals Inc. is a West Virginia corporation having a place of business in West Virginia. (No. 14-777-RGA, D.I. 1, ¶¶ 6, 7). Mylan has filed a motion to dismiss for lack of personal jurisdiction. (No. 14-777-RGA, D.I. 14). On June 20, 2014, Novartis filed an ANDA suit asserting the same patents against Mylan in the Northern District of West Virginia. (NDWV No. 14-cv-106-IMK, D.I. 1).

On August 27, 2014, four of the five Novartis corporations filed an ANDA suit against Zydus Noveltech Inc., Zydus Pharmaceuticals (USA) Inc. and Cadila Healthcare Ltd., asserting the '023 and '031 patents against a proposed rivastigmine transdermal patch. (No. 14-1104-RGA). The Zydus defendants are New Jersey corporations with principal places of business in either Vermont or New Jersey, and Cadila is an Indian corporation. (No. 14-1104-RGA, D.I. 1, ¶¶ 6-8). They have filed a motion to dismiss for lack of personal jurisdiction and on other grounds. (No. 14-1104-RGA, D.I. 14). The only briefing so far has been Defendants' opening brief, but that brief does state that the day after filing this case, Novartis filed "an identical complaint" against Defendants in New Jersey. (No. 14-1104-RGA, D.I. 15, p.1).[3]

The Mylan defendants, meanwhile, have been being sued in Delaware in other ANDA cases, and, at least recently, have been filing motions to dismiss for lack of personal jurisdiction. Most of the motions have been resolved. See AstraZeneca AB v. Mylan, 2014 WL 5778016 (D. Del. Nov. 5, 2014); Acorda Therapeutics, Inc. v. Mylan Pharmaceuticals Inc., 2015 WL 186833 (D. Del. Jan. 14, 2015); Forest Labs, Inc. v. Amneal Pharmaceuticals LLC, 2015 WL 880599 (D. Del. Feb. 26, 2015). Judge Sleet has certified AstraZeneca for interlocutory appeal. (No. 14-664-GMS, D.I. 103). So too has Chief Judge Stark in Acorda. (No. 14-935-LPS, D.I. 36). Permission to appeal the AstraZeneca and Acorda cases is pending in the Court of Appeals. (Fed. Cir. Nos. 15-117 & 15-124).

Decision.

I received supplemental submissions following the Acorda ruling. (No. 14-777-RGA, D.I. 33, 34, 36, 38, 40, 46, 47).

I am not sure I have anything to add to what my colleagues have already said. The factual history of the rivastigmine litigation, recited above, parallels very closely with the litigation history in Acorda. On the general jurisdiction question, I am going to follow Acorda and Forest Labs. I will explain briefly my reasons for doing so.

First, the Delaware registration statutes require consent to general jurisdiction. See Sternberg v. O'Neil, 550 A.2d 1105, 1116 (Del. 1988). Thus, as a factual matter, Mylan ...


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