Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 1 of 8 PageID #: 4100
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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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`Plaintiff,
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`v.
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`DAIICHI SANKYO CO., LTD.,
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`Defendant.
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`CASE NO. 2:20-cv-00337-JRG
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`JURY TRIAL DEMANDED
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`DEFENDANT’S SUPPLEMENTAL REPLY IN SUPPORT OF ITS
`RULE 12(B) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 2 of 8 PageID #: 4101
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`As is often the case when a non-resident plaintiff files suit against a non-resident defendant
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`over claims that have no ties to the forum, Seagen Inc. (“Seagen”) is left grasping at straws to find
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`contacts sufficient to support the exercise of jurisdiction over Daiichi Sankyo Company, Limited
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`(“Daiichi Sankyo Japan”). As a result, Seagen points only to a smattering of contacts with Texas—
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`most of which stem from actions by entities other than Daiichi Sankyo Japan and none of which
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`are legally relevant to the question of personal jurisdiction. And perhaps more telling is what
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`Seagen has been unable to identify. After briefing and discovery spanning five months, Seagen
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`has been unable to identify any relevant direct activities by Daiichi Sankyo Japan in Texas, any
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`sales or shipments of Enhertu® into Texas by Daiichi Sankyo Japan, or any exercise of the
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`necessary level of control by Daiichi Sankyo Japan over non-party Daiichi Sankyo, Inc. (“Daiichi
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`Sankyo US”), which Seagen has not shown is subject to jurisdiction in Texas in any event. In
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`short, there is no basis to exercise personal jurisdiction here, and even if the Court had subject
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`matter jurisdiction over this case (it does not, Dkt. Nos. 22, 69), the Complaint must be dismissed.
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`I.
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`DAIICHI SANKYO JAPAN HAS NO DIRECT ACTIVITIES IN TEXAS
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`Despite robust written discovery, extensive document productions, and five depositions,
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`Seagen is unable to point to any direct activities by Daiichi Sankyo Japan in Texas. Indeed, Daiichi
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`Sankyo Japan is not a Texas resident, has no offices in Texas, has no employees in that state, and
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`does not sell Enhertu® in Texas (or anywhere else in the United States). In its earlier briefing, the
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`only “direct activities” in Texas to which Seagen pointed was Daiichi Sankyo Japan’s sponsorship
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`of certain clinical trials and attending conferences regarding Enhertu® prior to the issuance of the
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`patent. As the authority Daiichi Sankyo Japan cited in its earlier briefing establishes, such slight
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`“contacts” are insufficient to confer personal jurisdiction. (See Dkt. 69, at 6 n.3.) Seagen has
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`offered no response and does not now repeat those arguments in its supplemental opposition.
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`Instead, Seagen now pivots to another—equally irrelevant—“contact” with Texas. This
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 3 of 8 PageID #: 4102
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`time, the “contact” is not even with respect to Enhertu® itself,
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` And, even were manufacturing to occur in the future, it could not give rise to any claim
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`of infringement of the ’039 Patent. Rather, the infringement claims regarding Enhertu® arise only
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`because Enhertu® is an antibody-drug conjugate (“ADC”). ADCs are “specialized cancer
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`treatments that use a ‘linker’ to attach (or ‘conjugate’) chemotherapeutic drugs to an antibody.”
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`Compl. ¶ 2. As Seagen admits, the “claims of the ’039 patent cover ADCs with linkers.” Id. ¶
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`18.
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` Bristol-Myers Squibb
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`Co. v. Superior Court, 137 S. Ct. 1773, 1778, 1780 (2017) (dispute must stem from jurisdictional
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`contacts).2
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`II.
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`THERE IS NO JURISDICTION UNDER A STREAM OF COMMERCE THEORY
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`Seagen’s supplemental opposition makes much of the fact that third-party distributors sell
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`Enhertu® in Texas—a fact Daiichi Sankyo Japan has never denied. But the sales figures provided
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`by Seagen (which, contrary to Seagen’s insinuations, do not reflect the revenue Daiichi Sankyo
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`Japan receives for the sales of Enhertu®) do not reveal any particular sales or advertising focus
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`1 For this reason, SGI’s reliance on Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), is
`misplaced. There, the negotiations at issue were for the very franchise agreement from which the
`franchise dispute arose. Not so here,
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` and which, standing alone, cannot and does not infringe Seagen’s asserted patent.
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`2
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 4 of 8 PageID #: 4103
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`specific to Texas. (Dkt. 99, at 1-2 & Ex. 30 (showing sales to all fifty states).) Rather,
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` The mere fact that Enhertu® is sold nationwide, including in
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`Texas, is insufficient to establish jurisdiction under a stream-of-commerce theory. See, e.g., Dkt.
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`69, at 5-7 (citing Bristol-Myers Squibb, 137 S. Ct. at 1775, 1782 (finding no personal jurisdiction
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`even though product was sold in forum as part of a nationwide sales effort)).
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`Similarly misplaced is Seagen’s renewed focus on who imports Enhertu® into the United
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`States. As Daiichi Sankyo Japan explained in its prior briefing, the produced U.S. Customs Forms
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`show that
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`event, regardless of who
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` In any
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` that says nothing about any relevant contacts with Texas. It is
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`undisputed that Daiichi Sankyo Japan does not ship Enhertu® directly into Texas. Nor, for that
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`matter, does non-party Daiichi Sankyo US.
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` (See 6/4/21 Declaration of Preston K. Ratliff II (“Ratliff Decl.”) Ex. 10.)5
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`This stands in stark contrast to the Polar Electro and Semcon cases to which Seagen tries to
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`analogize this case; in both those cases (unlike here), the defendant shipped the product directly
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`into the forum state. Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1345 (Fed. Cir. 2016); Semcon
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`is the second-most populous state,
`popclock/; see also Dkt. 99, at 1-2 & Ex. 30.
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`4 For clarity, Daiichi Sankyo Japan ships
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` selling Enhertu® within the United States.
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` Texas
` See, e.g., https://www.census.gov/
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`then responsible for
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` (See Ratliff Decl. Ex. 11.)
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 5 of 8 PageID #: 4104
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`IP Inc. v. TCT Mobile Int’l Ltd., No. 2:18-CV-00194-JRG (E.D. Tex. July 2, 2019).
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`III. THERE IS NO JURISDICTION BASED ON AN AGENCY THEORY
`Seagen devotes considerable space to an incorrect argument that Daiichi Sankyo US is an
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`agent of Daiichi Sankyo Japan. This is untrue, but even if that were the case, Seagen fails to take
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`the next step to establish that non-party Daiichi Sankyo US would be subject to personal
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`jurisdiction in Texas. (See Dkt. 22, at 19.) It would not. It is undisputed that Daiichi Sankyo US
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`is not a Texas entity and has no offices in that state.
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` (See Ratliff Decl. Ex. 11, at 17; see also id. Ex. 10.) All Seagen has
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`been able to point to is that
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` (Id. Ex. 11, at 25.) But that alone is
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`insufficient to establish personal jurisdiction. Cf. Bristol-Myers, 137 S. Ct. at 1778 (no personal
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`jurisdiction in forum despite the fact that BMS had 250 sales representatives in the forum state, as
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`well as five research and laboratory facilities).
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`Moreover, none of the facts to which Seagen points demonstrates that Daiichi Sankyo
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`Japan controls non-party Daiichi Sankyo US in a way that “pervade[s] [Daiichi Sankyo US’s]
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`dealings with the forum.” Fellowship Filtering Techs., LLC v. Alibaba.com, Inc., No. 15-CV-
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`02049-JRG, 2016 WL 6917272, at *2 (E.D. Tex. Sept. 1, 2016) (emphasis added). Rather, Seagen
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`points only to facts regarding Daiichi Sankyo Japan’s oversight of the global efforts of its various
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`affiliates. That global oversight, however, is fundamentally different from controlling non-party
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`Daiichi Sankyo US’s efforts regarding sales of Enhertu® in the United States, let alone in Texas.
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`For example,
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` (Dkt. 99, at 3; see also
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`Ratliff Decl. Ex. 13, at 264:5-10, 264:20-265:8.) Seagen also argues that Daiichi Sankyo US’s
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 6 of 8 PageID #: 4105
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`supply chain unit is led by a Daiichi Sankyo Japan employee;
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`14, at 296:22-25.) This reporting structure says nothing about Daiichi Sankyo Japan’s supposed
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`control of non-party Daiichi Sankyo US’s dealings with Texas. To the contrary,
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` (Dkt. 69, at 8-9 (citing testimony).)6
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` is a far cry from the type of pervasive control necessary under an agency theory.
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`Fellowship, 2016 WL 6917272, at *2, *4 (no agency between parent and subsidiary even though
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`the entities “shared the same controlling member” and the parent “maintained approval authority”
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`over certain acts of the subsidiary).
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`IV.
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`SGI RAISES NO NEW ADDITIONAL ARGUMENTS
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`Seagen repeats its prior arguments as to indirect infringement as well as under Rule 4(k)(2),
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`but makes no new arguments and cites no new facts. These arguments fail for all the reasons set
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`forth in Daiichi Sankyo Japan’s prior briefing. (See Dkt. 22, at 19-20; Dkt. 69, at 7-8, 10.)
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`Daiichi Sankyo Japan respectfully requests dismissal of the Complaint without prejudice.
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`CONCLUSION
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`6 Seagen also argues there is “comingling of corporate roles,” Dkt. 99, at 4,
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` This is insufficient. See, e.g., Fellowship, 2016 WL 6917272 (finding imputation
`improper even where there is 100% stock ownership and “identity of directors and officers”).
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 7 of 8 PageID #: 4106
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`Dated: June 4, 2021
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`Respectfully submitted,
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`/s/ Deron R. Dacus
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`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
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`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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`Attorneys for Defendant Daiichi
`Sankyo, Company, Limited
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`OF COUNSEL:
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`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
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`Attorneys for Defendant Daiichi
`Sankyo, Company, Limited
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`Case 2:20-cv-00337-JRG Document 110 Filed 06/09/21 Page 8 of 8 PageID #: 4107
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who have consented to
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`electronic service are being served with a copy of this document via electronic mail on June 4,
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`2021. I also hereby certify that all counsel of record who have consented to electronic service are
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`being served with a notice of filing of this document, under seal, pursuant to L.R. CV-5(a)(7) on
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`June 4, 2021.
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`/s/ Preston K. Ratliff II
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