Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 1 of 8 PageID #: 3525
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant.
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`Civil Action No. 2:20-CV-00337-JRG
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`SEAGEN INC.’S SUPPLEMENTAL OPPOSITION TO
`DAIICHI SANKYO CO., LTD.’S MOTION TO
`TRANSFER UNDER 28 U.S.C. § 1404 TO THE DISTRICT OF DELAWARE
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`sf-4491980
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 2 of 8 PageID #: 3526
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`I.
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`INTRODUCTION
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`The additional discovery that Daiichi Sankyo Co., Ltd. (“DSC”) provided only after the
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`Court ordered it to do so confirms DSC has not met its burden on its Motion to Transfer.
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`Seagen, Inc.’s (“Seagen”) opposition argued, inter alia, that this District is not more
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`inconvenient than Delaware for key witnesses including those in Japan and the West Coast and is
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`more favorable for accessibility to relevant documents. (Dkt. 66 at 4–12.) The supplemental
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`discovery the Court ordered has reinforced these arguments, and did not undermine Seagen’s
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`other bases for opposing transfer. In particular, the new discovery confirmed that DSC’s
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`activities support Seagen’s claims of direct infringement against DSC, making its witnesses and
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`documents highly relevant, and refuted DSC’s assertion that most of the relevant documents are
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`more readily accessible in Delaware.
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`II.
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`BACKGROUND
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`Seagen filed a motion to compel DSC to respond to certain discovery requests made
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`during venue and jurisdictional discovery, which DSC had refused to answer. (Dkt. 58.) The
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`Court granted Seagen’s motion in-part. (Dkt. 81.) Pursuant to that order, Seagen served an
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`interrogatory regarding the locations of certain documents, to which DSC responded. (Chivvis
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`Decl. ¶ 2; Ex. A.)1 DSC also served supplemental responses to four interrogatories and produced
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`documents in its custody and in the custody of its U.S. subsidiary, DSI, including additional
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`details on how Enhertu is shipped to the United States. (Chivvis Decl. ¶¶ 3, 11; Ex. B.) Seagen
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`also continued its 30(b)(6) deposition of DSC. (Chivvis Decl. ¶ 5; Exs. D, H.)
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`III. ARGUMENT
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`1 All references to “Chivvis Decl.” or “Ex.” are to the Declaration of Matthew A. Chivvis filed
`contemporaneously with this opposition.
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 3 of 8 PageID #: 3527
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`A.
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`DSC Holds Title to the Enhertu Vials That Enter the U.S. and Therefore
`DSC’s Activities are Relevant to the Case
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`DSC’s additional evidence regarding the importation of Enhertu into the U.S. confirms
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`that DSC’s activities (and therefore the location of its witnesses and documents) are relevant to
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`the transfer analysis. As the entity importing the vials of Enhertu into the U.S., DSC’s activities
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`constitute direct infringement as well as indirect and contributory infringement. (Dkt. 76 at 4–5.)
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`DSC is wrong to discount the evidence in Japan from the transfer analysis. (See Dkt. 70 at 3–4.)
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`While it previously argued that non-party Daiichi Sankyo Inc. (“DSI”) was the entity
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`responsible for importing Enhertu into the U.S. (Reply at 4), DSC now admits that “[DSC] is
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`responsible for [the] cost of transportation of the bulk vials of Enhertu® until the bulk vials of
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`Enhertu® are delivered [to DSI] in Allentown, Pennsylvania, and also bears the risk of loss until
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`the bulk vials of Enhertu® are delivered to that location.” (Ex. B, DSC Suppl. Resp. to Rog 2 at
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`13; see Ex. C at 5.) This is consistent with the “DDP” or “Delivery Duty Paid” designation on
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`the shipments of Enhertu to DSI, where DSI does not take possession of the Enhertu until the
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`location designated by DSI. (Dkt. 67-9; Ex. D, Smith Dep. Tr. at 265:2-14.) This designation
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`was a deliberate choice that DSC and DSI made—for the transfer of ownership to take place
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`after the vials entered the U.S. “[DSI] has selected Allentown, Pennsylvania as the U.S. delivery
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`location, and [DSC] ensures that the bulk vials of Enhertu® are delivered to that selected
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`location.” (Ex. B at 13.) DSC is therefore the importer of Enhertu under the Patent Act and
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`DSC cannot ignore the location of DSC’s witnesses and documents for the transfer analysis.2
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`2 Even if DSI assists DSC by facilitating shipment of Enhertu into the U.S. (Ex. D, Smith Dep.
`Tr. at 260:23-261:6), the inquiry is who retained ownership of the product after it entered the
`U.S.—in this case, DSC. (Dkt. 76 at 4); Nuance Commc’ns, Inc. v. Abbyy Software House, 626
`F.3d 1222, 1233 (Fed. Cir. 2010); see also Canton R. Co. v. Rogan, 340 U.S. 511, 515 (1951).
`Any actions by DSI in importing Enhertu into the U.S. was on DSC’s behalf. (Ex. D, Smith
`Dep. Tr. at 260:23–261:6.)
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 4 of 8 PageID #: 3528
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`B.
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`Additional Relevant Documents are Located Outside of Delaware
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`DSC’s additional discovery refutes its claim that the relevant documents are mostly in or
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`near Delaware. Delaware is not a clearly more convenient forum than the Eastern District of
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`Texas with respect to documents.
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`1.
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`Documents relating to the DSC’s termination of the collaboration
`agreement and alleged development of Enhertu are in Japan
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`DSC asserts that it developed its infringing ADC technology independently, despite
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`having collaborated with Seagen on ADC technology development for nearly a decade. (Dkt. 22
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`at 4.) DSC does not dispute that the relevant witnesses for the research, development, and
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`manufacturing of Enhertu are located in Japan. (See Dkt. 70 at 4; Dkt. 76 at 4–5.) These
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`witnesses are relevant to DSC’s direct infringement as well as the claims for indirect
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`infringement, contributory infringement, and willful infringement. (See Dkt. 76 at 4–5.)
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`DSC’s supplemental response confirms that the relevant documents are also in Japan, and
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`Delaware is not a clearly more convenient forum than this District for those witnesses and
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`documents. (See Dkt. 66 at 10-11.) DSC acknowledges that “Documents reflecting [DSC’s]
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`termination of” the collaboration agreement “are from [DSC’s] files in Japan.” (Ex. A at 6.)
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`Further documents regarding alleged issues with the ADC collaboration including “test results,
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`slide presentations, and reports” are also all “located in Japan.” (Id.) And “[d]ocuments
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`reflecting [DSC’s] independent ADC research for the Accused Product” includes “numerous
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`internal [DSC] documents, which are located in Japan.” (Id.)
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`2.
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`DSC possesses financial data relating to U.S. sales of Enhertu
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`The location of DSC’s records concerning U.S. financial forecasts and sales of Enhertu
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`are relevant to the transfer analysis. DSC’s supplemental discovery shows that in addition to the
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`research and development documents discussed above, copies of the financial records for
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 5 of 8 PageID #: 3529
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`Enhertu are also in Japan, weighing against transfer to Delaware. DSC produced multiple
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`financial reports and presentations that reflect U.S. sales of Enhertu.3 (Exs. I–M.) DSC’s
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`corporate representative confirmed that DSI shared these financial numbers with DSC. (Ex. H,
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`Switzer Dep. Tr. at 263:22–265:17; 277:6–15; 282:5–12.)
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`3.
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`Distributor data regarding sales of Enhertu are in the possession and
`control of third parties, not DSI
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`The locations of distributor sales records for Enhertu do not support a showing that
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`Delaware is clearly more convenient than the Eastern District of Texas. DSC’s corporate
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`representative confirmed that DSI does not possess or have control over the database containing
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`daily distributor sales information. (Ex. H, Switzer Dep. Tr. at 251:2–6.) This sales data is
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`reported on a daily basis by each U.S. distributor, who are located around the country, with four
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`distributors within the subpoena power of this Court. (Dkt. 66 at 3; Ex. D, Smith Dep. Tr. at
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`321:9-21; see Exs. N–O.) The reports are compiled in a database maintained by a third party
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`vendor, ValueCentric. (Ex. H, Switzer Dep. Tr. at 251:8–17.) Although various DSI employees
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`can access the database and generate reports from the data, the database remains under
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`ValueCentric’s control. (Id.; Ex. D, Smith Dep. Tr. at 324:9–18.) ValueCentric is incorporated
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`in Florida with a principal address in Naples, FL. (Exs. P–Q.) Delaware is not more convenient
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`than this District with respect to the database and any documents in ValueCentric’s possession.
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`4.
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`A Texas Manufacturer Has Relevant Documents for the
`Manufacturing Process for Enhertu
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`The additional discovery indicates documents relating to at least a portion of the
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`manufacturing process for Enhertu may be found in Texas. DSC now admits that it has been in
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`3 The financial numbers in DSC’s possession reflect DSI’s sales of Enhertu within the U.S., not
`the payments DSI makes to DSC for the Enhertu being shipped to the U.S. (See Ex. H, Switzer
`Dep. Tr. at 282:8–12, 306:20–307:11.)
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 6 of 8 PageID #: 3530
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`negotiations with a company based in College Station, Texas since 2019 for contract
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`manufacturing of components of Enhertu. (Ex. B at 23; Exs. E–G.) As the manufacturer has
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`received information from DSC and have at least started in preliminary manufacturing activities,
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`it will have documents relevant to the manufacturing process for this component. (See Ex. F at
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`DSC_ENHERTU_00289458 (listing initiated activities including “Technology Transfer,”
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`“Process Transfer and Establishment,” “Manufacturing Pre-Production,” “QC Testing & Lot
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`Disposition.”)) DSC’s corporate representative also testified that “two [DSC] individuals have
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`been to Fujifilm in Texas”4 and that these individuals were part of the DSC team negotiating
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`with Fujifilm. (Ex. H, Switzer Dep. Tr. at 314:22–315:8.)
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`C.
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`The Delaware Case is Stayed in Favor of This Litigation
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`Judicial economy would not be served by transferring this case to the District of
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`Delaware. On April 28, the Delaware court granted Seagen’s motion to stay that action. (Dkt.
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`91.) That second-filed litigation does not favor transfer. (Dkt. 66 at 4–6.)
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`IV. CONCLUSION
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`DSC’s compelled additional discovery regarding importation and the locations of
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`relevant evidence show that Delaware is not a clearly more convenient forum. The Court should
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`deny the motion to transfer.
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`4 The evening before this brief was due, and six days after Mr. Switzer’s deposition, DSC’s
`counsel sent a letter to Seagen claiming that Mr. Switzer, testifying under oath as DSC’s
`corporate designee, was “mistaken” when he gave this testimony. (Chivvis Decl. ¶ 11.) DSC
`has not served any corrections to the deposition transcript and did not explain the basis for its
`counsel’s last-minute contention that the sworn testimony of its corporate designee was
`“mistaken.” (Id.) On the morning this brief was due and twelve days after its court-ordered
`deadline to serve supplemental interrogatory responses (Dkt. 90), DSC served “amended”
`supplemental responses that also contradict Mr. Switzer’s testimony. (Chivvis Decl. ¶ 11.) If
`DSC attempts to introduce new evidence in its reply papers, that would be improper and should
`not be considered by the court. See Narvaez v. Wilshire Credit Corp., 757 F. Supp. 2d 621, 633
`n.11 (N.D. Tex. 2010) (“The Court will not consider arguments or evidence raised for the first
`time in a reply brief.”).
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`Case 2:20-cv-00337-JRG Document 102 Filed 06/02/21 Page 7 of 8 PageID #: 3531
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`Dated: May 26, 2021
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`By: /s/ Melissa R. Smith
`Michael A. Jacobs
`MJacobs@mofo.com
`Matthew A. Chivvis
`MChivvis@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
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`Bryan Wilson
`BWilson@mofo.com
`Pieter S. de Ganon
`PdeGanon@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
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`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
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`Of Counsel:
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`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Charles Everingham IV
`Texas State Bar No. 00787447
`ce@wsfirm.com
`Andrea L. Fair
`Texas State Bar No. 24078488
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: 903.757.6400
`Facsimile: 903.757.2323
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`Attorneys for Plaintiff Seagen Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Plaintiff’s counsel of record were served with a true and
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`correct copy of the foregoing document by electronic mail on May 26, 2021.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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