Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 1 of 8 PageID #: 2446
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SEAGEN INC.,
`
`Plaintiff,
`
`v.
`
`DAIICHI SANKYO CO., LTD.,
`
`Defendant.
`
`CASE NO. 2:20-cv-00337-JRG
`
`
`
`JURY TRIAL DEMANDED
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO TRANSFER
`UNDER 28 U.S.C. § 1404 TO THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 2 of 8 PageID #: 2447
`
`
`
`Seagen Inc. (“SGI”) fails to identify any meaningful connection of its claims to this
`
`District. As it must concede: (i) SGI is a Delaware corporation headquartered in Washington State;
`
`(ii) the sole defendant, Daiichi Sankyo Company, Limited (“Daiichi Sankyo Japan”) is a foreign
`
`entity headquartered in Japan and with no offices in the U.S.; and (iii) every likely trial witness
`
`concerning acts of alleged infringement is located outside of this District. Given this reality, SGI
`
`fails to explain any convenience that results from litigating in this District. In contrast, the District
`
`of Delaware is a forum that is home to SGI and in which a related case is pending, involving the
`
`desirable parties for SGI’s claims of infringement―Daiichi Sankyo, Inc. (“Daiichi Sankyo US”)
`
`and AstraZeneca Pharmaceuticals LP (“AstraZeneca US”).1 SGI’s omission of Daiichi Sankyo
`
`US and AstraZeneca US from this case is inappropriate forum-shopping, as this District is not a
`
`proper venue as to either of them. While SGI attempts to mislead the Court in asserting that Daiichi
`
`Sankyo US is the “marketing and sales arm of [Daiichi Sankyo Japan],” (D.I. 66 (“Opp.”) at 2), it
`
`provides no basis to disregard the corporate separateness of these companies, or to ignore the
`
`evidence establishing that the District of Delaware is more convenient for deciding SGI’s claims.
`
`ARGUMENT
`
`Delaware Is Clearly More Convenient for Likely Trial Witnesses
`
`A.
`
`
`Incredibly, SGI argues that “the convenience of witnesses is not a core concern,” contrary
`
`to this Court’s consistent pronouncements that witness convenience is “probably the single most
`
`important factor in a transfer analysis.” Uniloc 2017 LLC v. Google LLC, No. 18-cv-00504, 2020
`
`
`1 Although SGI filed this litigation before the District of Delaware litigation, courts regularly do
`not defer to the first filed case when, as here, another forum is more convenient. Micron Tech.,
`Inc. v. Mosaid Techs., Inc., 518 F.3d 897, 904 (Fed. Cir. 2008) (“These exceptions are not rare.”).
`
`
`
`
`
`- 1 -
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 3 of 8 PageID #: 2448
`
`
`
`WL 3064460, at *2,*6 (E.D. Tex. June 8, 2020) (citing In re Genentech, Inc., 566 F.3d 1338, 1343
`
`(Fed. Cir. 2009)). SGI’s downplaying of this factor make plain that Delaware is more convenient.
`
`The Parties’ initial disclosures provide guidance as to the issues to be tried and the potential
`
`witnesses to be called at trial.2 (Declaration of Preston K. Ratliff II, Exhs. 6, 7.)
`
`
`
`
`
`
`
`
`
` AstraZeneca US’s witnesses, including its director of Alliance
`
`Management, Al Bucci, and his colleagues are located in Maryland and Delaware. (D.I. 24, Bucci
`
`Decl. ¶11.)
`
`
`
`
`
`Against these witnesses’ convenience, SGI casts about for ties to Texas. (Opp. at 8-10.)
`
`Tellingly, not a single witness or entity featured in SGI’s Opposition appeared in SGI’s initial
`
`disclosures―not surprisingly, none of them could provide material testimony. Specifically, SGI
`
`now
`
`identifies various distributors, account managers, clinical directors, and sales
`
`representatives―roles that have employees located nationwide, including Texas. (Id. at 7-8.) The
`
`purported knowledge of these “witnesses” pertains to an issue―“the sale and use of Enhertu® in
`
`Texas,” (Id. at 7-8)―that is not disputed. Notably absent from SGI’s brief is any explanation as
`
`
`2 Both Parties’ initial disclosures identified the inventors and those who developed the accused
`product. These witnesses reside, respectively, on the West Coast of the United States (Washington
`and California) and Japan. SGI incorrectly argues that Marshall is more convenient for those
`witnesses than Wilmington. Japanese witnesses would experience an identical transit time to
`either Marshall or Wilmington when flying non-stop from Tokyo to Dallas, Texas or Newark,
`Jersey (a possibility SGI ignored in its opening brief), and then driving to Marshall or Wilmington.
`And it would take less time for witnesses on the West Coast to fly to Philadelphia and drive to
`Wilmington than to fly to Dallas and drive to Marshall. Further, the drive from Philadelphia to
`Wilmington is a mere 30-40 minutes, whereas the drive from Dallas to Marshall is three hours.
`
`- 2 -
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 4 of 8 PageID #: 2449
`
`
`
`to why it would seek to compel the trial attendance of Daiichi Sankyo US’s sales representatives
`
`or distributors. On the contrary, SGI admits the witnesses would be relevant only “[i]n the event
`
`that testimony regarding Enhertu® distribution becomes relevant to the suit,” (Opp. at 9) (emphasis
`
`added), and there is no reason to believe that it will be. The Parties’ initial disclosures did not
`
`include the distributors, account managers, clinical directors or sales representatives SGI now
`
`points to, even though the disclosures were exchanged after SGI was aware that Daiichi Sankyo
`
`Japan sought transfer. In short, there is not a single likely trial witness for whom this District is
`
`convenient, but there are several witnesses for whom Delaware is substantially more convenient.3
`
`B.
`
`SGI Exaggerates the Role of Daiichi Sankyo Japan Witnesses
`
`SGI’s argument that the convenience is comparable between this District and the District
`
`of Delaware also ignores SGI’s claims, which by the patent statute must be directed to the making,
`
`using, selling, offering to sell, and/or importing of Enhertu® in the U.S. See 35 U.S.C. § 271(a).
`
`Those claims target activities undertaken by Daiichi Sankyo US, not Daiichi Sankyo Japan.
`
`
`
`
`
` As to selling and offering
`
`to sell to Enhertu®, it is undisputed that non-party Daiichi Sankyo US is the only entity licensed to
`
`sell Enhertu® in the U.S. and sworn deposition testimony made plain that:
`
`
`
`
`
`
`
`
`
`
`
`3 Likewise, no relevant documents are in this District. Although SGI argues the presence of
`documents is irrelevant because certain records are digital, both the Fifth Circuit and the Federal
`Circuit have rejected such an argument. See Fujitsu Ltd. v. Tellabs, Inc., 639 F. Supp. 2d 761, 767
`(E.D. Tex. July 7, 2009) (“[d]espite technological advances that certainly lighten the relative
`inconvenience of transporting large amounts of documents across the country, this factor is still
`part of the transfer analysis”); In re TS Tech USA Corp., 551 F.3d 1315, 1321 (Fed. Cir. 2008).
`
`- 3 -
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 5 of 8 PageID #: 2450
`
`
`
`Further, SGI misleadingly states, “[Daiichi Sankyo Japan] imports Enhertu®.” (Opp. at 1.)
`
`
`
`
`
`
`
`
`
`
`
` Although SGI argues that the testimony was inconsistent in an attempt to
`
`fit its false narrative,
`
` confirmed that Daiichi Sankyo US and
`
`AstraZeneca US are responsible for the
`
`selling, and marketing of Enhertu® in the
`
`U.S., which is reflected on the face of Enhertu®’s label.4 In contrast, Daiichi Sankyo Japan’s
`
`research, development, and manufacturing activities cannot constitute infringing acts. (Opp. at 7.)
`
`Enhertu® was discovered outside of the U.S., and
`
`
`
` (See Ratliff Decl. Exh. 8.) Enhertu®’s clinical development activities, which
`
`were performed in support of regulatory approval, cannot constitute infringement of a U.S. patent.5
`
`Thus, Daiichi Sankyo Japan’s activities have little relevancy compared to the importing, selling,
`
`and marketing by Daiichi Sankyo US and AstraZeneca US.
`
`C.
`
`
`
`Public Interest Factors Weigh Heavily in Favor of Transfer
`
`Any purported judicial economy that would result from continued litigation in this District
`
`does not trump the convenience for material witnesses and location of documentary evidence.
`
`Realtime Data LLC v. Dropbox, Inc., Nos. 15-cv-463, 15-cv-465, 2016 WL 153860, at *6 (E.D.
`
`Tex. Jan. 12, 2016) (“benefits of judicial economy” do not outweigh showing that transferee
`
`
`
`
`5 The patent statute provides safe harbor for such activities. 35 U.S.C. § 271(e)(1).
`
`
`
`- 4 -
`
`
`
`
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 6 of 8 PageID #: 2451
`
`
`
`district is a “clearly more convenient forum”). SGI refused to proceed with discovery in the
`
`Delaware Action, and therefore cannot point to that Action’s lack of progress as a basis for not
`
`proceeding in Delaware. (See Ratliff Decl. Exhs. 4, 5.) Further, “any familiarity that [this Court]
`
`has gained with the underlying litigation due to the progress of the case since the filing of the
`
`complaint is irrelevant when considering the transfer motion and should not color its decision.” In
`
`re Tracfone Wireless, Inc., No. 2021-118, 2021 U.S. App. LEXIS 6689, at *5 (Fed. Cir. Mar. 8,
`
`2021). Transferring while discovery is just beginning would not cause any meaningful disruption.
`
`See Uniloc, 2020 WL 3064460 at *6 (transferring case after claim construction and only a few
`
`months before trial).
`
`D. Additional Discovery Still Will Support the Convenience of the District of Delaware
`
`
`
`SGI’s complaints about the jurisdictional discovery process amount to no more than an
`
`effort to distract from the lack of merit to its substantive arguments. Daiichi Sankyo Japan has
`
`produced over a thousand pages of documents, provided fulsome answers to all six interrogatories,
`
`and provided 30(b)(6) deposition testimony. SGI also obtained documents and deposition
`
`testimony from Daiichi Sankyo US and AstraZeneca US. This evidence shows a complete absence
`
`of any relevant connection of this matter to Texas and confirms Daiichi Sankyo Japan’s lack of
`
`involvement or responsibility in the sale and distribution of Enhertu® in the U.S. (See supra at 2-
`
`3.) Simply because SGI’s hoped-for narrative is unsupported by the facts does not mean that the
`
`testifying witnesses were unprepared, coached, or that Daiichi Sankyo Japan obfuscated or
`
`withheld evidence. No further discovery is warranted.
`
`CONCLUSION
`
`For the reasons set forth above and in Daiichi Sankyo Japan’s Opening Brief, this case
`
`should be transferred to the District of Delaware.
`
`- 5 -
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 7 of 8 PageID #: 2452
`
`
`Dated: April 7, 2021
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Deron R. Dacus
`
`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
`
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
`
`Attorneys for Defendant Daiichi
`Sankyo Company, Limited
`
`OF COUNSEL:
`
`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
`
`Attorneys for Defendant Daiichi
`Sankyo Company, Limited
`
`- 6 -
`
`

`

`Case 2:20-cv-00337-JRG Document 72 Filed 04/14/21 Page 8 of 8 PageID #: 2453
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that all counsel of record who have consented to
`
`electronic service are being served with a copy of this document via electronic mail on April 7,
`
`2021. I also hereby certify that all counsel of record who have consented to electronic service are
`
`being served with a notice of filing of this document, under seal, pursuant to L.R. CV-5(a)(7) on
`
`April 7, 2021.
`
`/s/ Preston K. Ratliff II
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`