Case 2:20-cv-00337-JRG Document 32 Filed 01/07/21 Page 1 of 26 PageID #: 172
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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 RULE 12(B) MOTION TO DISMISS FOR LACK OF
`SUBJECT MATTER JURISDICTION AND LACK OF PERSONAL JURISDICTION
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`Case 2:20-cv-00337-JRG Document 32 Filed 01/07/21 Page 2 of 26 PageID #: 173
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .................................................................................................................. 1
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`BACKGROUND.................................................................................................................... 3
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`I.
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`II.
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`ENHERTU® IS SOLD AND MARKETED IN THE UNITED STATES
`BY DAIICHI SANKYO US AND ASTRAZENECA US, NOT DAIICHI
`SANKYO JAPAN ........................................................................................... 3
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`THE ENHERTU®-RELATED DISPUTES AND RELEVANT
`JURISDICTIONAL ALLEGATIONS .............................................................. 4
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`LEGAL STANDARD ............................................................................................................ 7
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`ARGUMENT ......................................................................................................................... 7
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`I.
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`II.
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`THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE
`SGI FILED THIS ACTION PREMATURELY ................................................. 7
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`THE COURT LACKS PERSONAL JURISDICTION OVER DAIICHI
`SANKYO JAPAN ..........................................................................................11
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`A.
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`This Court Lacks Specific Jurisdiction Over Daiichi Sankyo Japan ........12
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`(1)
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`(2)
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`SGI Cannot Rely Upon the “Stream of Commerce” Theory
`to Establish Personal Jurisdiction ..............................................12
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`SGI Cannot Rely Upon an “Agency” Theory to Establish
`Jurisdiction...............................................................................17
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`B.
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`Daiichi Sankyo Japan Is Not Subject to Jurisdiction in Texas
`Under FRCP 4(k)(2) ............................................................................19
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`CONCLUSION .....................................................................................................................21
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Albany Int’l Corp. v. Yamauchi Corp.,
`978 F. Supp. 2d 138 (N.D.N.Y. 2013) ......................................................................... 19–20
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`Asahi Metal Indus. Co. Ltd. v. Superior Court,
`480 U.S. 102 (1987).......................................................................................................... 13
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009).......................................................................................................... 18
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`Beverly Hills Fan Co. v. Royal Sovereign Corp.,
`21 F.3d 1558 (Fed. Cir. 1994) ........................................................................................... 16
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`Bristol-Myers Squibb Co. v. Superior Court,
`137 S. Ct. 1773 (2017) ................................................................................................ 15–16
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`Cedars-Sinai Med. Ctr. v. Watkins,
`11 F.3d 1573 (Fed. Cir. 1993) .............................................................................................7
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`Corcoran v. CVS Health Corp.,
`169 F. Supp. 3d 970 (N.D. Cal. 2016) ................................................................................ 17
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`Daimler AG v. Bauman,
`571 U.S. 117 (2014).................................................................................................... 12, 17
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`Fellowship Filtering Techs., LLC v. Alibaba.com, Inc.,
`No. 15-cv-02049-JRG, 2016 WL 6917272 (E.D. Tex. Sept. 1, 2016) .........................7, 17–19
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`Freudensprung v. Offshore Tech. Servs., Inc.,
`379 F.3d 327 (5th Cir. 2004) ............................................................................................. 18
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`GAF Bldg. Materials Corp. v. Elk Corp. of Dallas,
`90 F.3d 479 (Fed. Cir. 1996) ...............................................................................................7
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`J. McIntyre Mach., Ltd. v. Nicastro,
`564 U.S. 873 (2011).................................................................................................... 13–16
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`Matthew Int’l Corp. v. Biosafe Eng’g, LLC,
`695 F.3d 1322 (Fed. Cir. 2012) ...........................................................................................7
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`NobelBiz, Inc. v. Global Connect, LLC,
`No. 13-cv-00804-MHS, 2014 WL 12613389 (E.D. Tex. Feb. 26, 2014) .............................. 11
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`Optis Wireless Tech., LLC v. Apple Inc.,
`No. 19-cv-00066-JRG, 2020 WL 999463 (E.D. Tex. Mar. 2, 2020) ......................................7
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`Polar Electro Oy v. Suunto Oy,
`829 F.3d 1343 (Fed. Cir. 2016) ........................................................................ 12–13, 16–17
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`Semcon IP Inc. v. TCT Mobile Int’l Ltd.,
`No. 18-cv-00194, 2019 WL 2774362 (E.D. Tex. July 2, 2019) ........................................... 17
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`Sunday v. Madigan,
`301 F.2d 871 (9th Cir. 1962) ...............................................................................................9
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`Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico,
`563 F.3d 1285 (Fed. Cir. 2009) ......................................................................................... 19
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`TriOptima AB v. Quantile Techs. Ltd.,
`No. 19-cv-00390-JRG, Dkt. 149, slip op. (E.D. Tex. Nov. 25, 2020)............................. 12, 16
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`Walden v. Fiore,
`571 U.S. 277 (2014).......................................................................................................... 15
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`Williams v. Yamaha Motor Co.,
`851 F.3d 1015 (9th Cir. 2017) ........................................................................................... 17
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`Statutes
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`15 U.S.C. §§ 260–267........................................................................................................... 1, 8
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`15 U.S.C. § 260a ......................................................................................................................9
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`15 U.S.C. § 262 ........................................................................................................................9
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`28 U.S.C. § 1404 .................................................................................................................... 20
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`35 U.S.C. § 154 .............................................................................................................. 1, 8–10
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`Other Authorities
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`Federal Rule of Civil Procedure 4(k)(2) ............................................................................ passim
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`Federal Rule of Civil Procedure 12(b) ............................................................................. 2, 7, 21
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`INTRODUCTION
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`This patent infringement lawsuit is the latest attempt by Plaintiff Seagen Inc. (“SGI”) to
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`wrongfully assert rights to Enhertu®, a revolutionary and life-saving breast cancer treatment
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`discovered by Daiichi Sankyo Company, Limited (“Daiichi Sankyo Japan”). After Daiichi Sankyo
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`Japan announced a $6.9 billion plus collaboration with AstraZeneca US’s parent company
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`concerning Enhertu®, SGI filed an application for issuance of U.S. Patent No. 10,808,039 (“the
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`ʼ039 Patent”)—making dramatic and unsupported expansions from the applications to which it
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`claims priority.1 The ʼ039 Patent issued on October 20, 2020. In its zeal to commence litigation ,
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`SGI initiated this lawsuit on October 19, 2020. Moreover, despite the fact that a prior district court
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`dispute over Enhertu® took place in Delaware, SGI inexplicably filed this suit in Texas—a state
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`with no connection to the issues or the parties (as explained further in a motion to transfer filed
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`contemporaneously with this motion).
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`The Complaint must be dismissed for lack of subject matter jurisdiction. A cause of action
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`for patent infringement cannot accrue and a court cannot exercise jurisdiction until the date a patent
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`is effective. Here, under 35 U.S.C. § 154(a)(2), and as reflected on the face of the patent itself, the
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`ʼ039 Patent became effective on October 20, 2020. Yet SGI filed its lawsuit at 11:02 pm Central
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`Time on October 19, 2020. To transform its Complaint from one filed on October 19, 2020 to one
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`filed on October 20, 2020, SGI appears to claim that only the Eastern Time zone is relevant. In
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`short, SGI’s position is that this Court has jurisdiction because 11:02 pm Central Time on October
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`19, 2020 equates to 12:02 am Eastern time on October 20, 2020. SGI’s position is foreclosed by
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`Section 262 of the Uniform Time Act, 15 U.S.C. §§ 260–267. Under that Act, Congress mandated
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`1 Daiichi Sankyo, Inc. and AstraZeneca Pharmaceuticals LP have filed a Petition for Post-Grant
`Review of the ʼ039 Patent, which challenges the asserted claims of the ʼ039 Patent based, in part,
`on lack of written description and lack of enablement.
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`that the timing of the accrual of rights—and a party’s corresponding ability to file suit in Texas for
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`alleged patent infringement and have a Texas court exercise jurisdiction—is governed by the time
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`zone where those acts are to be performed. Here, that requires application of the Central Time
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`zone, not the Eastern Time zone. SGI filed its Complaint prematurely.
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`This Complaint also must be dismissed for lack of personal jurisdiction. Daiichi Sankyo
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`Japan is a Japanese company with no offices or operations in the United States. Instead, Enhertu®
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`is sold and marketed in the United States by two U.S. entities—Daiichi Sankyo, Inc. (“Daiichi
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`Sankyo US”) and AstraZeneca Pharmaceuticals LP (“AstraZeneca US”). SGI attempts to establish
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`personal jurisdiction based on three theories: stream of commerce, agency, and Federal Rule of
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`Civil Procedure 4(k)(2). The first fails because Daiichi Sankyo Japan’s far-removed and indirect
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`role in a nationwide sales effort is insufficient to establish jurisdiction in Texas. Likewise, SGI
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`cannot rely on an agency theory because it has not alleged the requisite level of control over any
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`entity, let alone an entity over which there is personal jurisdiction in Texas. And finally, Federal
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`Rule of Civil Procedure 4(k)(2) is inapplicable because this case can (and should) proceed in
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`Delaware.
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`As explained in further detail below, SGI’s Complaint should be dismissed under Rule
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`12(b)(1) and 12(b)(2).
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`BACKGROUND
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`I.
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`ENHERTU® IS SOLD AND MARKETED IN THE
`UNITED STATES BY DAIICHI SANKYO US AND
`ASTRAZENECA US, NOT DAIICHI SANKYO JAPAN
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`Daiichi Sankyo Japan is a Japanese company headquartered in Tokyo. (Miki Decl. ¶2.)2
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`It owns the formulation for Enhertu®, but it does not make, use, offer to sell, or sell Enhertu® in
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`Texas, or anywhere else in the United States more generally. (Miki Decl. ¶¶4–6.) Instead, its
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`subsidiary—Daiichi Sankyo US—is the entity that obtained FDA approval for Enhertu® and is the
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`only entity that is licensed to sell Enhertu® in the United States. (Switzer Decl. ¶3.) In addition to
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`rights to sell Enhertu®, Daiichi Sankyo US has rights to co-market Enhertu® with AstraZeneca US
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`in the United States. (Id. ¶4.) Indeed, the package insert for Enhertu® lists Daiichi Sankyo US as
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`the manufacturer, and states that it is marketed by both Daiichi Sankyo US and AstraZeneca US.
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`(Smith Decl. ¶3.) Daiichi Sankyo US and AstraZeneca US are jointly responsible for the
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`marketing and commercialization of Enhertu® within the United States. (Switzer Decl. ¶4.)
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` (Id.)3 Both Daiichi Sankyo US and
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`2 “Decl.” refers to the Declarations of Preston K. Ratliff II, Hiroaki Miki of Daiichi Sankyo
`Japan, Daniel Switzer of Daiichi Sankyo US, Kevin Smith of Daiichi Sankyo US, and Albert
`Bucci of AstraZeneca US, which are submitted contemporaneously with this motion.
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`AstraZeneca US are Delaware entities, with principal places of business in New Jersey and
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`Delaware, respectively. (Switzer Decl. ¶2; Bucci Decl. ¶4.)
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`Daiichi Sankyo US buys bulk vials of Enhertu® from Daiichi Sankyo Japan. (Smith Decl.
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`¶2.)
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` Daiichi Sankyo US then sells Enhertu® to a select network of specialty distributors
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`and pharmacies, who in turn sell Enhertu® to customers throughout the United States. (Id. at ¶4.)
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`II.
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`THE ENHERTU®-RELATED DISPUTES
`AND RELEVANT JURISDICTIONAL ALLEGATIONS
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`Starting in 2008, Daiichi Sankyo Japan and SGI worked together as part of a collaboration
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`agreement to try to develop anti-cancer drugs. That collaboration did not produce a viable
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`candidate, and Daiichi Sankyo Japan terminated the agreement in 2015. Daiichi Sankyo Japan
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`continued with its own independent research, which led to the discovery of Enhertu®. Four years
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`after the end of the collaboration with SGI, SGI sent a notice of dispute to Daiichi Sankyo Japan,
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`claiming that the parties’ prior agreement required Daiichi Sankyo Japan to assign its patent rights
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`to Enhertu® to SGI. Despite years of knowledge of Enhertu®—including multiple partnership
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`requests—SGI did not send the notice of dispute until August 2019, mere months after Daiichi
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`Sankyo Japan and AstraZeneca US’s parent company announced their collaboration agreement for
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`Enhertu® worth nearly $7 billion. That dispute led to a 2019 litigation in federal district court in
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`Delaware, followed by an arbitration. The 2019 Delaware litigation has been stayed pending the
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`arbitration. The arbitration remains ongoing, and is set for hearing in June 2021.
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`In addition, in July 2019, SGI filed an application for issuance of the ʼ039 Patent. The ʼ039
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`Patent was issued and became effective as of October 20, 2020, as reflected on the face of the
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`patent itself. SGI filed suit in this Court on October 19, 2020 at 11:02 pm. (Ratliff Decl. ISO Mot.
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`Dismiss ¶1, Exh. 1.)4 Despite being fully aware that Daiichi Sankyo US and AstraZeneca US—
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`not Daiichi Sankyo Japan—market and commercialize Enhertu® in the United States, SGI named
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`only Daiichi Sankyo Japan. The omission of Daiichi Sankyo US and AstraZeneca US is
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`unsurprising, as venue would be improper in the Eastern District of Texas as to those entities.
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`The Complaint does not—and cannot—allege that Daiichi Sankyo Japan directly makes,
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`uses, offers to sell, or sells Enhertu® in Texas. Instead, the Complaint alleges only that Daiichi
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`Sankyo Japan “causes” Enhertu® to be imported into, offered for sale, sold, and used in the United
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`States. (D.I. 1, Compl. ¶4.) For its jurisdictional allegations, SGI proffers three theories of specific
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`personal jurisdiction: (i) stream of commerce (id. ¶10), (ii) agency theory (id. ¶11), and (iii) Federal
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`Rule of Civil Procedure 4(k)(2) (id. ¶12):
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`10. [Daiichi Sankyo Japan] also has sufficient minimum contacts with the forum as
`a result of business it conducts within Texas and this district. [Daiichi Sankyo
`Japan]—directly or through subsidiaries or intermediaries including distributors,
`retailers, and others—offers for sale, and sells (as well distributes, advertises, and
`markets) products, including DS-8201, that infringe the ’039 patent throughout
`Texas and this district. For example, [Daiichi Sankyo Japan] owns the U.S.
`registration for the ENHERTU® trademark for DS-8201. [Daiichi Sankyo Japan]
`acts in concert with others to purposefully and voluntarily place the infringing
`products in a distribution chain that foreseeably leads to the infringing products
`being offered for sale, sold, and used in Texas and this district as part of the ordinary
`stream of commerce. [Daiichi Sankyo Japan] has done so with the expectation that
`these infringing products have been, and will continue to be, purchased in Texas
`and this district and that such purchases be part of the ordinary stream of commerce.
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`4 “Exh.” refers to the exhibits attached to the January 5, 2021 Declaration of Preston K. Ratliff II
`submitted in support of Defendant’s Motion to Dismiss.
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`11. In addition, [Daiichi Sankyo Japan]’s subsidiaries and contractual business
`partners have operated as agents of [Daiichi Sankyo Japan] as parts of a business
`group in which executives of [Daiichi Sankyo Japan] make important operational
`decisions regarding the manufacture, importation, offer for sale, sale, and intended
`use of the infringing products, including DS-8201. Through these agents, [Daiichi
`Sankyo Japan] has conducted business and committed acts of infringement in the
`United States, Texas, and this district.
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`12. Alternatively, to the extent that [Daiichi Sankyo Japan] is not subject to
`jurisdiction in any state court of general jurisdiction, this Court may exercise
`jurisdiction over [Daiichi Sankyo Japan] pursuant to Federal Rule of Civil
`Procedure 4(k)(2) because: (a) Seagen’s claims arise under federal law; and (b)
`[Daiichi Sankyo Japan] has sufficient contacts with the United States as a whole,
`including but not limited to manufacturing the infringing products and importing
`them into the United States and offering for sale, selling, and causing them to be
`sold in the United States, such that this Court’s exercise of jurisdiction over [Daiichi
`Sankyo Japan] satisfies due process
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`Although
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`the Complaint does not specifically name either Daiichi Sankyo US or
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`AstraZeneca US, the allegations of the Complaint are directed at those entities. For example, SGI
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`claims that Daiichi Sankyo Japan commits infringement through “subsidiaries” and “contractual
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`business partners” who form a “business group” with which Daiichi Sankyo Japan “make[s]
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`important operational decisions regarding the manufacture, importation, offer for sale, sale, and
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`intended use” of Enhertu®. (Id. ¶11.) In addition, SGI alleges that Daiichi Sankyo Japan “actively
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`encourages others to infringe” and “knowingly
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`induces infringement by others” including
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`“importers, manufacturers, sellers, and users” and that “promoting and encouraging the use of the
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`infringing products” constitutes infringement. (Id. ¶25.) To protect their important legal rights
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`regarding their commercialization efforts with respect to Enhertu®, Daiichi Sankyo US and
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`AstraZeneca US, along with Daiichi Sankyo Japan, initiated a Delaware action for declaratory
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`judgment in a case captioned Daiichi Sankyo, Inc. et al. v. Seagen Inc., No. 20-cv-01524-LPS (D.
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`Del. Nov. 13, 2020). That suit remains pending.
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`LEGAL STANDARD
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`As the party asserting jurisdiction, SGI bears the burden of proof on a Rule 12(b)(1) or
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`12(b)(2) motion to dismiss. Optis Wireless Tech., LLC v. Apple Inc., No. 19-cv-00066-JRG, 2020
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`WL 999463, at *2 (E.D. Tex. Mar. 2, 2020) (subject matter jurisdiction); Fellowship Filtering
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`Techs., LLC v. Alibaba.com, Inc., No. 15-cv-02049-JRG, 2016 WL 6917272, at *2 (E.D. Tex.
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`Sept. 1, 2016) (personal jurisdiction). Although uncontroverted allegations in the Complaint must
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`be accepted as true, “[o]nce challenged, allegations alone are insufficient to meet the complainant’s
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`burden.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993). The Court may
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`consider evidence extrinsic to the Complaint, including declarations, when assessing jurisdiction.
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`Id.
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`I.
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`THE COURT LACKS SUBJECT MATTER JURISDICTION
`BECAUSE SGI FILED THIS ACTION PREMATURELY
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`ARGUMENT
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`“Patent rights are created only upon the formal issuance of the patent; thus, disputes
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`concerning patent validity and infringement are necessarily hypothetical before patent issuance.”
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`GAF Bldg. Materials Corp. v. Elk Corp. of Dallas, 90 F.3d 479, 483 (Fed. Cir. 1996). When a
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`plaintiff files a suit for patent infringement before accruing the right to assert a cause of action
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`against putative infringers, the court lacks subject matter jurisdiction. See id. at 482–83. The
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`subsequent accrual of that right after a lawsuit is filed does “not cure th[e] jurisdictional defect”
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`that exists at the time of filing. Id. at 483; see also, e.g., Matthew Int’l Corp. v. Biosafe Eng’g,
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`LLC, 695 F.3d 1322, 1331 (Fed. Cir. 2012) (where the court lacks jurisdiction at the time the
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`complaint is filed, it is “without authority to consider [a patent] which issue[s] after that complaint
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`was filed”). A patent is effective on a particular date, prominently identified on the patent’s face,
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`with the Patent Act stating that the rights granted in a patent “shall be for a term beginning on the
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`date on which the patent issues and ending 20 years from the date on which the application for the
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`patent was filed.” 35 U.S.C. § 154(a)(2) (emphases added). Here, the face of the ʼ039 Patent
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`makes plain that it is effective on October 20, 2020. (Ratliff Decl. ISO Mot. Dismiss ¶2, Exh. 2.)
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`Thus, the right to sue for alleged infringement of the ’039 Patent in this Court accrued on October
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`20, 2020. Yet, SGI initiated this lawsuit the day before, at 11:02 pm Central Time on October 19,
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`2020, before its right to enforce the patent accrued in this Court. (Id. ¶1, Exh. 1.) Because SGI
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`filed its lawsuit a day too early, this Court lacks subject matter jurisdiction.
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`SGI acknowledges the jurisdictional defect by including two dates in the signature block
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`of its Complaint: “Dated: October 19, 2020 CT (October 20, 2020 ET).” (D.I. 1, Compl. at 13.)
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`SGI’s characterization of its Complaint filed on October 19, 2020 as one filed on October 20, 2020
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`appears to be based on a concept of “absolute time,” in which, for example, an act that occurred at
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`11:02 pm Central Time occurred at 12:02 am Eastern Time. Although the concept of “absolute
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`time” might appropriately be used in certain contexts—such as determining which of two events,
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`such as the filing of two lawsuits, occurred first—it should not be used to determine when the right
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`to invoke the jurisdiction of this Court to sue for patent infringement accrues.
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`This is because Congress enacted the Uniform Time Act, 15 U.S.C. §§ 260–267, to address
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`the exigencies attendant to the differences in clock times and calendar dates in a nation with
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`numerous time zones. Specifically, Congress specified the timing of the accrual of rights granted
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`by the government and resolved questions associated with government acts on different time zones
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`and dates, including the right to enforce a patent and a court’s exercise of jurisdiction over a patent
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`suit, both of which are at issue here. Congress required that the timing of a right’s accrual, and the
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`performance of an act by the government (including courts), be based on the nation’s various time
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`zones, not a concept of absolute time. In relevant part, the Act provides:
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`In all statutes, orders, rules, and regulations [(i)] 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 [(ii)]
`relating to the time within which any rights shall accrue or determine, or [(iii)]
`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 of Transportation) be
`the United States standard time5 of the zone within which the act is to be
`performed.
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`15 U.S.C. § 262 (emphases added). As the Ninth Circuit has explained, “[i]n the absence of
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`circumstances pointing to a different conclusion, this statute manifests a general congressional
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`intent that zoned variations in time shall be observed in determining the time when statutory rights
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`or liabilities accrue.” Sunday v. Madigan, 301 F.2d 871, 874 (9th Cir. 1962). Thus, in Sunday,
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`the Ninth Circuit found that a criminal statute that was to go into effect on May 31 was effective
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`in a particular time zone only as of midnight on May 31 in each respective time zone—i.e., the
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`statute went in effect as of midnight in the Eastern Time zone for acts occurring in the Eastern
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`Time zone even though it was not effective until midnight in the Central Time zone for acts
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`occurring in the Central Time zone. Id. at 874–75.
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`The Uniform Time Act compels the same conclusion here. Section 154 of the Patent Act
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`is a statute relating to both “the time within which any rights shall accrue” and “the time of
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`performance of any act by . . . the judicial branch” as required for application of 15 U.S.C. § 262.
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`Section 154 provides:
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`Subject to the payment of fees under this title, such grant shall be for a term
`beginning on the date on which the patent issues and ending 20 years from the
`date on which the application for the patent was filed in the United States or, if the
`application contains a specific reference to an earlier filed application or
`applications under section 120, 121, 365(c), or 386(c), from the date on which the
`earliest such application was filed.
`
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`5 Under 15 U.S.C. § 260a, the “standard time” of a given time zone is modified by daylight savings
`time in the states where it is observed.
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`- 9 -
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`Case 2:20-cv-00337-JRG Document 32 Filed 01/07/21 Page 14 of 26 PageID #: 185
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`
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`35 U.S.C. § 154 (a)(2) (emphasis added). First, Section 154 concerns the time within which any
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`rights shall accrue because it defines when the statutorily created right to sue for patent
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`infringement accrues in various federal courts throughout the United States. Second, Section 154
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`concerns the time of performance of an act by the judicial branch by defining when courts can
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`properly exercise jurisdiction over a patent suit. Because Section 154 specifies that a patent is
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`effective—and thus the right to sue for alleged patent infringement accrues—on a particular date,
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`the question of when the right to file a patent suit in Texas federal court accrues is determined by
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`the “United States standard time of the zone” where the patentee files suit. Likewise, the question
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`of when a court can properly exercise jurisdiction over a patent suit similarly is determined by the
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`time zone in which the patentee filed suit. Thus, SGI’s right to sue for alleged patent infringement
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`in Texas, and this Court’s ability to act by exercising jurisdiction, accrued as of midnight Central
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`Time on October 20, 2020, and not before.
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`SGI will no doubt argue that its rush to file this action depended only on the time in the
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`Eastern Time zone, but that argument ignores and negates the Congressional mandate of the
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`Uniform Time Act. Section 154 expressly states the term of a patent is based on a particular date,
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`yet SGI’s approach would force a Texas court to assess that operative date and regulate itself based
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`on a foreign time zone that does not apply to any of its other operations. That is precisely the
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`impact the Uniform Time Act avoids. SGI’s approach of determining when rights accrue and can
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`be enforced throughout the country solely on the basis of the Eastern Time zone also runs contrary
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`to the notice function associated with patents.
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`The Court of Appeals for the Federal Circuit has not addressed the particular issue of when
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`a cause of action for patent infringement accrues or when a court has jurisdiction over a patent
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`suit; nor has a court from this District considered the issue in any published opinion. Another
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`Case 2:20-cv-00337-JRG Document 32 Filed 01/07/21 Page 15 of 26 PageID #: 186
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`
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`court from this District has, however, excused a premature filing in an unpublished decision,
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`NobelBiz, Inc. v. Global Connect, LLC, No. 13-cv-00804-MHS, 2014 WL 12613389 (E.D. Tex.
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`Feb. 26, 2014), finding that it had jurisdiction over complaints filed at 11:06 pm and 11:14 pm
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`Central Time on October 21 even though the parties agreed that the patent issued on October 22.
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`Id. at *1–*3. In so ruling, Judge Schneider found it appropriate to apply the concept of absolute
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`time to determine when the right to file suit accrued. Id. But the defendants in that case did not
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`raise the impact of the Uniform Time Act, nor did Judge Schneider (or the authority on which he
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`relied) otherwise consider or address that statute. Id. Thus, Judge Schneider did not have the
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`opportunity to consider the effect of the governing Uniform Time Act, including its proscription
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`against the use of absolute time rather than honoring time zone differences in this context.6
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`Accordingly, under the Uniform Time Act, the right to bring suit for infringement in Texas
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`and this Court’s jurisdiction over the same both accrued as of midnight Central Time on October
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`20—the date the ʼ039 Patent became effective. SGI’s October 19, 2020 lawsuit thus was
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`premature, and its action must be dismissed for lack of subject matter jurisdiction.
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`II.
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`THE COURT LACKS PERSONAL
`JURISDICTION OVER DAIICHI SANKYO JAPAN
`
`SGI’s Complaint must also be dismissed because personal jurisdiction cannot be exercised
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`over the sole defendant, Daiichi Sankyo Japan, in Texas. SGI does not allege that Daiichi Sankyo
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`Japan is subject to the general jurisdiction of Texas courts, nor could it. As SGI admits, Daiichi
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`Sankyo Japan is a Japanese corporation with a principal place of business in Japan. There is no
`
`
`6 In NobelBiz, Judge Schneider worried that applying local time “requires that an issued patent
`ceases to exist when it crosses from Eastern Time zone into the Central Time zone and that it must
`wait another hour to be born again.” NobelBiz, 2014 WL 12613389, at *3. To the contrary, the
`Uniform Time Act does not mean the ’039 Patent ceased to exist, but only that SGI’s ability to use
`a Texas court to enforce its patent rights and for a Texas court to exercise jurisdiction is based on
`the time zone applicable to that court, not the time zone applicable in different states.
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`Case 2:20-cv-00337-JRG Document 32 Filed 01/07/21 Page 16 of 26 PageID #: 187
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`
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`basis by which Daiichi Sankyo Japan could fairly be said to be “at home” in Texas, as required for
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`the exercise of general jurisdiction. See, e.g., Daimler AG v. Bauman, 571 U.S. 117 (2014);
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`TriOptima AB v. Quantile Techs. Ltd., No. 19-cv-00390-JRG, Dkt. 149, slip op. at 5 (E.D. Tex.
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`Nov. 25, 2020) (“[I]t is ‘incredibly difficult to establish general jurisdiction in a forum other than
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`the place of incorporation or principal place of business.’”). Instead, SGI alleges (1) specific
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`jurisdiction under both “stream of commerce” and “agency” theories and (2) alternative
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`jurisdiction under the federal long-arm statute in Federal Rule of Civil Procedure 4(k)(2). None
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`of these approaches supports personal jurisdiction over Daiichi Sankyo Japan.
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`A.
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`This Court Lacks Specific Jurisdiction Over Daiichi Sankyo Japan
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`The law of the Federal Circuit, not regional law, governs the determination of whether
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`there is personal jurisdiction. E.g., Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1347 (F