Case 2:20-cv-00337-JRG Document 114 Filed 06/28/21 Page 1 of 26 PageID #: 4457
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Plaintiff,
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`CIVIL ACTION NO. 2:20-CV-00337-JRG
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`SEAGEN INC.,
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`v.
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`DAIICHI SANKYO CO., LTD.,
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`Before the Court is Defendant Daiichi Sankyo Co., Ltd.’s (“DSC”) Rule 12(b) Motion to
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`Dismiss for Lack of Subject Matter Jurisdiction and Lack of Personal Jurisdiction (the “Motion to
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`Dismiss”) (Dkt. No. 22) and Motion to Transfer Under 28 U.S.C. § 1404 to the District of Delaware
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`(the “Motion to Transfer”). Plaintiff Seagen Inc. (“Seagen”) opposes both motions. For the reasons
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`stated herein, both the Motion to Dismiss and the Motion to Transfer are DENIED.
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`I.
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`BACKGROUND
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`Plaintiff Seagen, a biotechnology company incorporated in Delaware and based in
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`Washington State, was granted U.S. Patent No. 10,808,039 (the “’039 patent” or the “asserted
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`patent”) on October 20, 2020. (Complaint, Dkt. No. 1 at ¶ 6; U.S. Pat. No. 10,808,039). Two
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`minutes after midnight (Eastern Time) on the issue date, Seagen filed this action for infringement
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`against DSC, a Japanese pharmaceutical company incorporated under the laws of Japan. (Dkt. No.
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`1 at ¶ 7). The ’039 patent is titled “Monomethylvaline Compounds Capable of Conjugation to
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`Ligands” and is directed to certain antibody-drug conjugates. (Id. ¶ 17; ’039 patent). Seagen alleges
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`that DS-8201, a cancer drug manufactured by DSC and sold under the name Enhertu, infringes the
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`’039 patent. (Id. at ¶¶ 21–29).
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`DSC has moved to dismiss this action under Fed. R. Civ. P. 12(b)(1) and 12(b)(2). It argues
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`that Seagen’s suit was filed prematurely, which would deprive the Court of subject-matter
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`jurisdiction. DSC also argues that the Court cannot exercise personal jurisdiction over it.
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`Separately, DSC has moved to transfer this case to the District of Delaware on the basis of
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`convenience under 28 U.S.C. § 1404(a). The parties undertook substantial discovery on
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`jurisdiction and venue, including a discovery dispute that required resolution by the Court. (Dkt.
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`No. 81). Now, after careful consideration of the briefing, including the supplemental briefing, (Dkt.
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`Nos. 22, 24, 66, 67, 69, 70, 76, 77, 99, 100, 103, 104, 105), and for the reasons stated herein, the
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`Court is of the opinion that both motions should be DENIED.1
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`II.
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`LEGAL STANDARDS
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`A.
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`Subject-Matter Jurisdiction
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`A district court can, and in fact must, dismiss a civil action under Fed. R. Civ. P. 12(b)(1)
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`if the court finds that it lacks constitutional or statutory subject-matter jurisdiction when the action
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`was filed. “It has long been the case that ‘the jurisdiction of the court depends upon the state of
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`things at the time of the action brought.’” Grupo Dataflux v. Atlas Global Grp., 541 U.S. 567, 570
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`(2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)). In the context of patent
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`infringement, there can be no jurisdiction if the patent-in-suit has not yet issued at the time the
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`complaint was filed, even if the patent later issues. See GAF Bldg. Materials Corp. v. Elk Corp. of
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`Dallas, 90 F.3d 479, 483 (Fed. Cir. 1996).
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`1 The Court is also aware of DSC’s motions for a hearing (Dkt. Nos. 80, 113). In light of the extensive briefing,
`however, the Court is of the opinion that a hearing is unnecessary. Accordingly, the Court resolves these motions on
`the papers. See L.R. CV-7(g).
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`2
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`B.
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`Personal Jurisdiction
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`A federal district court has personal jurisdiction over a party if the party would be subject
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`to personal jurisdiction in a court of general jurisdiction in the forum state. See Fed. R. Civ. P.
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`4(k)(1)(A). When a party is not a resident of that state, the exercise of personal jurisdiction must
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`comport with both the state’s “long-arm statute” and constitutional principles of due process.
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`Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). “Because the Texas long-arm statute extends
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`to the limits of federal due process, the two-step inquiry collapses into one federal due process
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`analysis.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008). Federal Circuit
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`law applies to determinations of personal jurisdiction “when a patent question exists.” Celgard,
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`LLC v. SK Innovation Co., Ltd., 792 F.3d 1373, 1377 (Fed. Cir. 2015).
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`Due process requires that a party have sufficient minimum contacts with the forum state
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`such that the exercise of jurisdiction would not offend traditional notions for fair play and
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`substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In assessing whether
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`due process is satisfied, the Federal Circuit considers: (1) whether the defendant purposefully
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`directed its activities at residents of the forum state; (2) whether the claim arises out of or relates
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`to those activities; and (3) whether the exercise of jurisdiction would be fair and reasonable.
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`Celgard, 792 F.3d at 1377.
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`C.
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`Venue and Convenience
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`A foreign defendant may not challenge the propriety of venue in a United States District
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`Court, but it may move to transfer for convenience under 28 U.S.C. § 1404(a). In re Princeton
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`Digital Image Corp., 496 F. App’x 73, 74 (Fed. Cir. 2012). Under the change-of-venue statute, “a
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`district court may transfer any civil action to any other district or division where it might have been
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`brought” for the purpose of convenience and in the interest of justice. 28 U.S.C. § 1404(a). To
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`prove that a suit “might have been brought” in the transferee forum, the movant must establish that
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`the transferee forum would have subject matter jurisdiction, personal jurisdiction, and proper
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`venue. See Hoffman v. Blaski, 363 U.S. 335, 343–44 (1960).
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`If the Court is satisfied that the action could have been initially brought in the transferee
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`forum, the Court considers eight non-exclusive private- and public-interest factors to determine if
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`transfer is warranted for convenience. In re Volkswagen AG, 371 F.3d 201, 202–03 (5th Cir. 2004)
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`[Volkswagen I]; In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)
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`[Volkswagen II]. The private interest factors are “(1) the relative ease of access to sources of proof;
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`(2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of
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`attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy,
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`expeditious and inexpensive.” Volkswagen II, 545 F.3d at 315 (quoting Volkswagen I, 371 F.3d at
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`203). The public interest factors are “(1) the administrative difficulties flowing from court
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`congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
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`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems
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`of conflict of laws [or in] the application of foreign law.” Id. (quoting Volkswagen I, 371 F.3d at
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`203) (alterations in original). The movant must “clearly demonstrate” that transferee forum would
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`be “clearly more convenient” than the transferor forum in view of the eight forum non conveniens
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`factors. Id. at 314–15.
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`III. DISCUSSION
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`The Court first addresses DSC’s Motion to Dismiss and concludes, for the reasons stated
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`herein, that it should be DENIED. The Court next reaches DSC’s Motion to Transfer and
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`concludes, as discussed herein, that it should also be DENIED.
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`A. Motion to Dismiss
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`1.
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`Subject-Matter Jurisdiction
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`DSC first moves to dismiss this action arguing that Seagen filed its complaint before the
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`’039 patent issued. If DSC is correct and Seagen’s complaint is premature, the Court must dismiss
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`Seagen’s complaint for lack of subject-matter jurisdiction. However, the Court concludes
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`otherwise and finds that it has subject-matter jurisdiction over Seagen’s timely filed complaint.
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`On its face, the ’039 patent issued from the U.S. Patent and Trademark Office (the “PTO”)
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`on October 20, 2020. Seagen filed its complaint at 12:02 a.m. Eastern Time on October 20, 2020,
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`which is 11:02 p.m. Central Time on October 19, 2020. This Court is located in the Central Time
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`zone. DSC argues that Seagen’s complaint was filed in the Eastern District of Texas before the
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`effective issue date. Seagen does not dispute the timing of this, but contends the patent had issued
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`and the right to exclude accrued at the start of October 20, 2020 in the Eastern Time zone.
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`DSC relies on the Uniform Time Act (“UTA”), 15 U.S.C. §§ 260–267, which is the
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`enabling statute for time zones. It argues that the UTA mandates that the applicable time zone for
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`filing suit in East Texas is the Central Time zone. Thus, DSC argues, Seagen did not have the right
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`to assert its patent in the Eastern District of Texas until the start of October 20, 2020 in the Central
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`Time zone. (Dkt. No. 22 at 7–11).
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`The UTA provides:
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`Within the respective zones created under the authority of sections 261 to 264 of
`this title the standard time of the zone shall insofar as practicable (as determined by
`the Secretary of Transportation) govern the movement of all common carriers
`engaged in interstate or foreign commerce. In all statutes, orders, rules, and
`regulations relating to the time of performance of any act by any officer or
`department of the United States, whether in the legislative, executive, or judicial
`branches of the Government, or relating to the time within which any rights shall
`accrue or determine, or within which any act shall or shall not be performed by any
`person subject to the jurisdiction of the United States, it shall be understood and
`intended that the time shall insofar as practicable (as determined by the Secretary
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`of Transportation) be the United States standard time of the zone within which the
`act is to be performed.
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`15 U.S.C. § 262.
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`DSC argues that Section 262 of the UTA restricts when Seagen may file its complaint
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`because it applies to “the time of performance of any act by any officer [of the] . . . judicial
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`branch[]” and “the time within which any rights shall accrue or determine.” (Dkt. No. 22 at 9).
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`According to DSC, the “rights” that accrue are the rights to exclude others from use of a patented
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`invention, which “begin[s] on the date on which the patent issues and end[s] 20 years from the
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`date on which the application for the patent was filed in the United States.” 35 U.S.C. § 154 (a)(2).
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`DSC also contends that the ability for the Court to hear a patent claim—i.e., the Court’s subject-
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`matter jurisdiction—is an “act” by the “judicial branch.” (Dkt. No. 22 at 9–10).
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`Seagen responds that the UTA does not apply to patent rights. (Dkt. No. 67 at 18). It cites
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`a prior decision of this Court, NobelBiz, Inc. v. Global Connect, L.L.C., No. 6:13-cv-804, 2014
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`WL 12613389 (E.D. Tex. Feb. 26, 2014). In NobelBiz, the Court confronted similar facts and
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`endorsed an “absolute time” approach, holding that nationwide patent rights vested at midnight
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`Eastern Time on the date of issuance. Id. at *2. Seagen also argues that Section 262’s references
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`to the Secretary of Transportation and common carriers limits application of the UTA to those
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`areas. (Dkt. No. 67 at 19).
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`DSC replies that Section 262’s broad language covers “all statutes” within the enumerated
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`categories, and thus encompasses the accrual of patent rights. (Dkt. No. 77 at 2–3). DSC also points
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`out that the Court did not have the opportunity to pass on the UTA in NobelBiz. Had the Court
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`considered the UTA, DSC argues, the Court would have reached a different result. (Dkt. No. 22 at
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`10–11).
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`The Court is not aware of any other authorities addressing whether patents are subject to
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`the UTA. The Court agrees with DSC that Section 262 of the UTA applies to patent rights.
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`However, the Court cannot agree with DSC that a patentee must wait to file suit in a district court
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`until the issue date begins in that court’s local time zone. Under a plain reading of Section 262 of
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`the UTA, a patentee’s right to exclude, and therefore the remedy of a civil action for infringement,
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`accrues upon issuance of the patent in the Eastern Time zone.
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`a.
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`The UTA Applies to Patent Rights
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`As an initial matter, Seagen’s argument that Section 262 of the UTA applies only to
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`common carriers and transportation regulations is unpersuasive. The UTA vests the Secretary of
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`Transportation with regulatory authority over time zones. See, e.g., 15 U.S.C. §§ 260 (“[T]he
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`Secretary of Transportation is authorized and directed to foster and promote widespread and
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`uniform adoption and observance of the same standard of time within and throughout each such
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`standard time zone.”); 261(a) (“The limits of each zone shall be defined by an order of the
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`Secretary of Transportation, having regard for the convenience of commerce and the existing
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`junction points and division points of common carriers engaged in interstate or foreign commerce,
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`and any such order may be modified from time to time.”). References to the Secretary of
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`Transportation in Section 262 simply connect that section back to the other enabling statutes in the
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`UTA.
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`Even though the first clause of Section 262 is written in terms of common carriers engaged
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`in interstate commerce, the second clause is drafted broadly to encompass “all statutes, orders,
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`rules, and regulations” implicating time in certain enumerated categories. To that end, in Sunday
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`v. Madigan—a case cited by both Seagen and DSC—the Ninth Circuit held that Section 262 of
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`the UTA governed the application of the Uniform Code of Military Justice to crimes committed
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`by servicemembers abroad. 301 F.2d 871, 875 (9th Cir. 1962). The Ninth Circuit noted that the
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`UTA “manifests a general congressional intent that zoned variations in time shall be observed in
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`determining the time when statutory rights or liabilities accrue.” Id. at 874. This Court perceives
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`no reason why Section 262 would not apply to patent rights if such rights fall within the statute’s
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`plain language. By its own terms, Section 262 of the UTA must apply to “all statutes, orders, rules,
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`and regulations relating to the time of performance of any act by any officer or department of the
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`United States . . . or relating to the time within which any rights shall accrue.” 15 U.S.C. § 262.
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`Title 35 of the United States Code provides that “[p]atents shall be issued in the name of
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`the United States of America, under the seal of the Patent and Trademark Office, and shall be
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`signed by the Director or have his signature placed thereon and shall be recorded in the Patent and
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`Trademark Office.” 35 U.S.C. § 153. Once issued, “[e]very patent shall contain . . . a grant to the
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`patentee . . . of the right to exclude others from making, using, offering for sale, or selling the
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`invention throughout the United States or importing the invention into the United States.”
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`35 U.S.C. § 154(a)(1). The same section provides that “such grant shall be for a term beginning
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`on the date on which the patent issues[.]” 35 U.S.C. § 154(a)(1).
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`The issuance of a patent by the Director of the PTO in the name of the United States is an
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`“act” by an officer and department of the United States. See 35 U.S.C. § 1(a) (“The United States
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`Patent and Trademark Office is established as an agency of the United States, within
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`the Department of Commerce.”); 35 U.S.C. § 3(a)(1) (“The powers and duties of the United States
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`Patent and Trademark Office shall be vested in an Under Secretary of Commerce for Intellectual
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`Property and Director of the United States Patent and Trademark Office . . . who shall be appointed
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`by the President, by and with the advice and consent of the Senate.”); see also Buckley v. Valeo,
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`424 U.S. 1, 126 (1976) (“[A]ny appointee exercising significant authority pursuant to the laws of
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`the United States is an ‘Officer of the United States[.]’”); cf. United States v. Arthrex, No. 19-
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`1434, 594 U.S. ___, slip op. at 19 (2021).
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` Likewise, the issue date of a patent determines when the patentee’s “right” to exclude
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`others “accrues.” See 35 U.S.C. §§ 154(a)(2), 271(a).
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`Plainly, therefore, patent terms are subject to Section 262 of the UTA. The term begins
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`when the patent issues, and the issue date both depends “on the time of performance of [an] act by
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`[an] officer or department of the United States,” and determines the “time within which . . . rights
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`shall accrue.”
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`b.
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`Seagen’s Complaint Was Timely Filed
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`Even under the UTA, however, the Court cannot agree with DSC’s argument that a
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`patentee must wait to file suit until midnight on the issue date in a court’s local time zone. Section
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`262 states that for any applicable statutory acts and rights, “it shall be understood and intended
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`that the time shall insofar as practicable . . . be the United States standard time of the zone within
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`which the act is to be performed.” 35 U.S.C. § 262 (emphasis added). With respect to patent terms,
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`issuance of the patent is the “act” that is performed by an officer or department of the United
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`States, and issuance of the patent is the “act” that causes rights to accrue. This act necessarily
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`occurs in the Eastern Time zone because the PTO must, by law, “maintain its principal office in
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`the metropolitan Washington, D.C., area, . . . for the purpose of carrying out its functions.” 35
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`U.S.C. § 1(b). The PTO is headquartered in Alexandria, Virginia, which is in the Eastern Time
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`zone as defined by the Secretary of Transportation’s regulations. See 49 C.F.R. §§ 71.4, 71.5.
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`DSC appears at least to concede that the ’039 patent “existed at all times following its
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`issuance,” but nonetheless contends that local time zones constrain the right “to enforce a patent
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`in a particular location.” (Dkt. No. 69 at 2). DSC also appears to argue that the exercise of
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`jurisdiction over a patent case is an “act” of an “officer” of the “judicial branch” within the
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`meaning of Section 262. (Dkt. No. 69 at 3). The Court does not agree and is unaware of any
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`authority that supports these propositions. The jurisdictional statutes for patent cases mention no
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`acts; only that district courts shall “have” original jurisdiction over patent cases. See 28 U.S.C. §
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`1338(a) (“The district courts shall have original jurisdiction of any civil action arising under any
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`Act of Congress relating to patents”); see also 28 U.S.C. § 1331 (“The district courts shall have
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`original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
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`States.”). Rather, it is an act of the plaintiff—the filing of a complaint—that commences a civil
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`action. Fed. R. Civ. P. 3.
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`More sensible is the conclusion that the issuance of a patent in the Eastern Time zone gives
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`the patentee nationwide rights to exclude others from making, using, selling, offering for sale, or
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`importing the patented invention. This accords with the statutory language defining a patentee’s
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`rights, which are framed in terms of the United States. See, e.g., 35 U.S.C. §§ 154(a)(1), 271(a).
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`This also accords with the reality that a suit for patent infringement, regardless of where brought,
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`allows a patentee to recover damages for all acts of infringement within the United States. See
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`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1371–72 (Fed. Cir.
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`2013).
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`Patent infringement occurs when a person “makes, uses, offers to sell, or sells any patented
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`invention, within the United States or imports into the United States any patented invention during
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`the term of the patent.” 35 U.S.C. § 271(a). The term begins when a patent issues. 35 U.S.C.
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`§ 154(a)(1). The remedy for patent infringement is a “civil action.” 35 U.S.C. § 281. District courts
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`have subject matter jurisdiction over civil actions arising under federal patent laws. 28 U.S.C.
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`§§ 1332, 1338(a). It follows, therefore, that a patentee has the right to bring a civil action in federal
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`court to enforce a patent as early as the first act of infringement—i.e., the first domestic use of the
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`patented invention without the patentee’s permission during the patent term. Since that term begins
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`when the PTO issues a patent in Alexandria, Virginia, the patentee need not wait to file suit until
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`the date changes in the locale of the district court.
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`To conclude otherwise, as DSC proposes, would lead to anomalous results. If a defendant
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`who is only subject to suit in the District of Hawaii could practice a patented invention in Hawaii
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`for five hours before the right to bring a civil action accrues, this would constitute acts of
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`infringement for which there is no remedy. No matter how hypothetical, such an outcome is clearly
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`inconsistent with the statutory rights granted by Congress to patentees. DSC’s interpretation of
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`Section 262 cannot lie.
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`Finally, the Court notes in passing, although the “absolute time” rule applied in NobelBiz
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`and other cases does not necessarily control here, the correct interpretation of Section 262 of the
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`UTA leads to the same result. See NobelBiz, 2014 WL 12613389, at *3; see also Cerro Wire Inc.
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`v. Southwire Co., 777 F. Supp. 2d 1334, 1337–38 (N.D. Ga. 2011).2
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`c.
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`The Court Has Subject-Matter Jurisdiction
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`For these reasons, the Court holds that it has subject matter jurisdiction to hear civil actions
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`for patent infringement at the time a patent issues in the Eastern Time zone. Seagen’s complaint
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`was timely filed, and the Court finds that it has subject-matter jurisdiction over this suit.
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`Accordingly, DSC’s Motion to Dismiss should be DENIED on this ground.
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`2.
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`Personal Jurisdiction
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`DSC next asks the Court to dismiss this suit for lack of personal jurisdiction. (Dkt. No. 22
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`at 11). DSC argues it does not have any contacts that would give rise to specific jurisdiction over
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`2 However, a different result might have been reached if the PTO’s statutory headquarters were located in the Central
`Time zone (e.g., Plano, Texas) rather than the Eastern Time zone.
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`it for Seagen’s infringement claims. (Id.). It contends that all sales of the accused product, Enhertu,
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`are conducted by its United States subsidiary, Daiichi Sankyo Inc. (“DSI”), in partnership with
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`AstraZeneca US (“AstraZeneca”). (Id. at 12–13). Neither DSI nor AstraZeneca are named as
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`defendants in this action.
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`
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`Seagen advances four theories of specific personal jurisdiction in its complaint and its
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`briefing. (Dkt. No, 1 at ¶¶ 9–12; Dkt. No. 67 at 6–7). First, Seagen argues that DSC is subject to
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`personal jurisdiction under a stream-of-commerce theory. (Dkt. No. 1 at ¶ 10; Dkt. No. 67 at 7).
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`Second, Seagen argues that DSC’s subsidiaries and business partners, including DSI and
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`AstraZeneca, are agents of DSC such that their contacts with Texas are properly imputed to DSC.
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`(Dkt. No. 1 at ¶ 11; Dkt. No. 67 at 7). Third, Seagen argues DSC is subject to personal jurisdiction
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`as an indirect infringer for inducing infringement by others in Texas. (Dkt. No. 1 at ¶ 9; Dkt. No.
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`67 at 7); see 35 U.S.C. § 271(b). Fourth, and to the extent DSC is not subject to personal
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`jurisdiction in any state, Seagen argues DSC has sufficient minimum contacts with the United
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`States as a whole, and is therefore subject to personal jurisdiction under Fed. R. Civ. P. 4(k)(2).
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`(Dkt. No. 1 at ¶ 12; Dkt. No. 67 at 7).
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`The Court ultimately concludes that DSC is subject to personal jurisdiction under a stream-
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`of-commerce theory. Therefore, the Court denies the Motion to Dismiss on this ground and needs
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`not address Seagen’s alternate theories.
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`a.
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`DSC Has Sufficient Minimum Contacts with Texas
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`Seagen alleges that DSC has sufficient minimum contacts with Texas under the stream-of-
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`commerce doctrine. Two competing views of the stream-of-commerce doctrine originated in Asahi
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`Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987). Justice Brennan,
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`writing for himself and Justices White, Marshall, and Blackmun, opined that placing goods into
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`the stream of commerce alone was sufficient to give rise to personal jurisdiction. Id. at 117
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`(Brennan, J. concurring). Justice O’Connor, writing for herself, the Chief Justice, and Justices
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`Powell and Scalia, could not endorse jurisdiction premised on the stream of commerce without
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`“something more” indicating a purposeful targeting of the forum. Id. at 109–108 (O’Connor, J.
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`plurality op.).
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`Nearly twenty-five years later, in J. McIntyre Machinery, Ltd. v. Nicastro, the Supreme
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`Court was again asked to pass on steam-of-commerce jurisdiction. 564 U.S. 873 (2011). The
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`petitioner, J. McIntyre, a United Kingdom company, had manufactured a machine that seriously
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`injured the respondent in New Jersey. Id. at 878. J. McIntyre had sold the machine to an
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`independent U.S. distributor, which brought the machine to New Jersey. Id. J. McIntyre did not
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`itself sell or market machines in the United States, and there was no allegation that the distributor
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`was under J. McIntyre’s control. Id. While representatives of J. McIntyre had attended conferences
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`in the United States, none of the conferences were in New Jersey. Id. Justice Kennedy, joined by
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`the Chief Justice and Justices Scalia and Thomas, opined that stream of commerce without more
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`was insufficient to give rise to personal jurisdiction. Id. at 882–83. Thus, while Justice Kennedy
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`in J. McIntyre endorsed Justice O’Connor’s view in Asahi Metals, neither opinion has carried a
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`majority of the Supreme Court. It remains unresolved whether Justice Brennan’s view (“stream of
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`commerce” alone) or Justice O’Connor’s view (“something more”) controls, and the Courts of
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`Appeals have divided on this question. See, e.g., Beverly Hills Fan Co. v. Royal Sovereign Corp.,
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`21 F.3d 1558, 1564–68 (Fed. Cir. 1994) (collecting cases).
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`On the facts presented in this case, the Court is persuaded that either test is satisfied. DSC
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`undeniably places Enhertu in the stream of commerce, which ends in doctor’s offices and oncology
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`hospitals in Texas. DSC imports Enhertu through New York “delivery duty paid” and passes title
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`to DSI in Pennsylvania. (See Dkt. No. 61 at 7–8, 10–11; Dkt. No. 67-2 at 57:12–58:21). DSI stores,
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`labels, and packages vials of Enhertu to prepare them for distribution. (Dkt. No. 24-3 at ¶ 3). DSI
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`has agreements with several domestic distributors that govern the sale and distribution of Enhertu.
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`(Id. at 14–15). These distributors distribute the drug throughout the United States, including Texas.
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`(E.g., Dkt. No. 62-2 at 65:2–24; 195:20–25; 207:8–209:15). Enhertu ultimately ends up being
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`purchased by health care providers such as Texas Oncology and MD Anderson, who provide the
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`drug to cancer patients in Texas. (Dkt. No. 67-3 at 91:7–9, 111:11–112:6; Dkt. No. 99-2 at 2).
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`DSC argues that Seagen cannot rely on this stream of commerce because Seagen has not
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`identified any Texas-specific contacts. (Dkt. No. 22 at 15–16). Essentially, it contends that Seagen
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`has not satisfied the “something more” test. The Court disagrees. First, DSC admitted in
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`interrogatory responses that DSC (and not merely DSI) “was involved in clinical trials relating to
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`the study of Enhertu® at The University of Texas M.D. Anderson Cancer Center and at The
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`University of Texas Southwestern Medical Center.” (Dkt. No. 67-6 at 19). Second, according to
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`several press releases, DSC (and not merely DSI) presented its research on DS-8201 (later Enhertu)
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`at the San Antonio Breast Cancer Symposium in 2017, 2018, 2019, and 2020. (Dkt. No. 67-10 at
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`2, 6, 11, 16).
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`These additional contacts take DSC’s ties with the Texas beyond the case of products that
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`fortuitously enter the state. Texas is a well-known national oncology hub. Clinical trials are an
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`essential precursor to approval of a new drug by the Food & Drug Administration (FDA). Without
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`the clinical trials, including those conducted in Texas, DSC and its affiliates would not have been
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`permitted to sell Enhertu domestically—the very acts alleged by Seagen to infringe.
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`Likewise, DSC’s repetitive presentation of its research at a Texas breast cancer symposium
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`(held in four consecutive years) shows an effort to market the new drug to Texas doctors and
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`convince them of its safety and efficacy—such efforts would reasonably lead to more prescriptions
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`issued, and thus, more sales in Texas. DSC then held its activities in Texas out to the public in the
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`form of several press releases. Notably, DSC’s 2020 press release—dated after this suit was filed
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`and after the ’039 patent issued—indicates that DS-8201 received FDA approval and, for the first
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`time, refers to the drug under its trade name Enhertu. Unlike the manufacturer in J. McIntyre—
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`who had attended conferences in the United States but not in New Jersey—DSC came to Texas
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`repetitively and intentionally.
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`The Court is persuaded that DSC has sufficient minimum contacts with the State of Texas
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`to warrant the exercise of personal jurisdiction. There is a clear nexus between DSC’s clinical trials
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`and research presentations in Texas and the ultimate presence of the accused products in Texas
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`through the stream of commerce. These activities demonstrate an intentional targeting of Texas by
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`DSC for its business activities, sufficient to satisfy either formulation of the stream-of-commerce
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`test. DSC’s contacts with Texas therefore evince a purposeful availment of the benefits of
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`conducting business in Texas, such that it should reasonably anticipate being subject to its laws
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`and the jurisdiction of its courts.
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`b.
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`Seagen’s Claims Arise from and Relate to DSC’s Texas Contacts
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`The Court is further persuaded that Seagen’s claims for infringement arise from or relate
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`to DSC’s contacts with Texas. Seagen’s infringement claims arise from DSC’s placing of Enhertu
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`into the stream of commerce because DSC’s sales of an allegedly patent-practicing product are the
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`very acts accused of infringement. See 35 U.S.C. § 271(a).
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`As to DSC’s clinical trials and research presentations: even if Seagen’s claims do not arise
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`from these activities, Seagen’s claims do relate to them. Ford Motor Co. v. Montana 8th Jud. Dist.
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`Ct., 141 S. Ct. 1017, 1026 (2021). In Ford, a products liability case, the Supreme Court upheld
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`personal jurisdiction over an automobile manufacturer even though an independent dealership had
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`brought the subject vehicles into the forum states. Id. at 1032. Justice Kagan, writing for a
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`unanimous Court, found a strong relationship between the forum, the defendant, and the litigation
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`because “Ford had systematically served a market in [the forum States] for the very vehicles that
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`the plaintiffs allege malfunctioned and injured them in those States.” Id. at 1028.
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`DSC’s activities in Texas relate to Seagen’s infringement claims in much the same way.
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`DSC conducted clinical trials in Texas hospitals and ha