There’s an old saying in journalism that three examples make a trend. Under those rules, we can now declare a trend in IP litigation. The U.S. Court of Appeals for the Federal Circuit ruled Wednesday that the chief judge of the Eastern District of Texas abused his discretion in refusing to transfer Novartis’ patent infringement case (pdf) against Hoffmann-La Roche out of his jurisdiction. This is the third time since the 5th Circuit’s October 2008 en banc ruling in In re Volkswagen that the Federal Circuit has granted a writ of mandamus and booted a patent case out of Texas. (The other two were In re TS Tech (pdf) and In re Genentech (pdf).)
Novartis, represented by Morrison & Foerster and McKool Smith, had argued that it was perfectly sensible for its infringement suit to be based in Texas, even though Novartis is a California-based company; Roche is a Swiss company with U.S. operations headquartered in New Jersey; and the drug at issue, Fuzeon, was developed in North Carolina, manufactured primarily in Colorado, and sold nationwide. Novartis’ reasoning? Texas was a central location where thousands of documents have already been electronically transferred, and one non-party witness lived in the state and was subject to subpoena there.
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