Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 1 of 21 PageID #: 2542
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SEAGEN INC.,
`
`v.
`
`Plaintiff,
`
`DAIICHI SANKYO CO., LTD.,
`
`Defendant.
`
`Civil Action No. 2:20-CV-00337-JRG
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`
`
`PLAINTIFF SEAGEN INC.’S OPPOSITION TO DEFENDANT
`DAIICHI SANKYO CO., LTD’S MOTION TO TRANSFER
`UNDER 28 U.S.C. § 1404 TO THE DISTRICT OF DELAWARE
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`

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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 2 of 21 PageID #: 2543
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION ............................................................................................................. 1
`BACKGROUND ............................................................................................................... 1
`A.
`DSC ........................................................................................................................ 1
`B.
`Other Related Co-Pending Litigation .................................................................... 2
`C.
`Location Of Witnesses And Evidence ................................................................... 2
`LEGAL STANDARD ........................................................................................................ 3
`III.
`IV. ARGUMENT ..................................................................................................................... 4
`A.
`The Private Interest Factors Disfavor Transfer ...................................................... 4
`1.
`DSC’s Duplicative Delaware Action Should Be Disregarded ................... 4
`2.
`The Convenience Of The Witnesses Does Not Favor Transfer ................. 6
`3.
`The Availability Of Compulsory Process Favors This District ................. 9
`4.
`Accessibility To Sources Of Proof Favors This District ......................... 10
`5.
`Practical Problems Will Arise If This Case Is Transferred ...................... 11
`The Public Interest Factors Disfavor Transfer ..................................................... 12
`1.
`Court Congestion Favors This District .................................................... 12
`2.
`Delaware Does Not Have A Local Interest In This Suit .......................... 12
`3.
`The Other Public Interest Factors Are Neutral. ....................................... 13
`Additional Discovery Will Likely Support The Convenience Of This
`Forum ................................................................................................................... 13
`CONCLUSION ................................................................................................................ 15
`
`
`I.
`II.
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`V.
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`B.
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`C.
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`i
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 3 of 21 PageID #: 2544
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`
`
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG 2018 WL 4680557 (E.D. Tex. Sept. 28, 2018) ..............................10
`
`Allergan Sales, LLC v. UCB, Inc.,
`No. 2:15-cv-01001-JRG-RSP, 2016 WL 8201783 (E.D. Tex. Nov. 2, 2016) .........................12
`
`Aloft Media, LLC v. Adobe Sys. Inc.,
`No. 6:07–cv–355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008) ...........................................3, 4
`
`Burger v. Am. Mar. Officers Union,
`No. 97-31099, 170 F.3d 184 (5th Cir. 1999) (unpublished) ......................................................4
`
`Bush Seismic Techs. LLC v. Am. Gem Soc’y,
`No. 2:14-CV-1809-JRG, 2016 WL 1545855 (E.D. Tex. Apr. 15, 2016) ..................................8
`
`Fujitsu Ltd. v. Tellabs, Inc.,
`639 F. Supp. 2d 761 (E.D. Tex. 2009) .......................................................................................6
`
`Garrett v. Hanson,
`429 F. Supp. 3d 311 (E.D. Tex. 2019) .....................................................................................12
`
`Genentech, Inc. v. Eli Lilly & Co.,
`998 F.2d 931 (Fed. Cir. 1993), abrogated on other grounds by
`Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ........................................................................5
`
`Good Sportsman Mktg. LLC v. Testa Assocs., LLC,
`No. 6:05CV90, 2005 WL 2850302 (E.D. Tex. Sept. 1, 2005) ..................................................6
`
`Implicit, LLC v. Palo Alto Networks, Inc.,
`No. 6:17-CV-00336-JRG, 2018 WL 1942411 (E.D. Tex. Feb. 20, 2018) ..............................12
`
`In re: Seattle SpinCo, Inc.,
`817 F. App’x 987 (Fed. Cir. 2020) (unpublished) .....................................................................4
`
`In re: Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .....................................................................................................3
`
`Konami Digital Ent. Co. v. Harmonix Music Sys., Inc.,
`No. 6:08cv286, 2009 WL 781134 (E.D. Tex. Mar. 23, 2009) ...........................................11, 12
`
`McDaniel v. GEICO Gen. Ins. Co.,
`No. 1:12-CV-2028 AWI JLT, 2013 WL 1790167 (E.D. Cal. Apr. 26, 2013) ...........................6
`
`
`
`ii
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 4 of 21 PageID #: 2545
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`
`
`Network-1 Sec. Sols., Inc. v. D-Link Corp.,
`433 F. Supp. 2d 795 (E.D. Tex. 2006) .................................................................................9, 10
`
`
`
`Phoenix Licensing, L.L.C. v. Gen. Motors, LLC,
`No. 2:13-cv-1093-JRG-RSP, 2015 WL 1431906 (E.D. Tex. Mar. 30, 2015) ...........................7
`
`Plastronics Socket Partners, Ltd. v. Hwang,
`No. 2:18-CV-00014-JRG-RSP, 2018 WL 6589873 (E.D. Tex. Dec. 14, 2018)........................9
`
`Rembrandt Wireless Techs., LP v. Apple Inc.,
`No. 2:19-CV-00025-JRG, 2019 WL 6344471 (E.D. Tex. Nov. 27, 2019)................................4
`
`Save Power Ltd. v. Syntek Fin. Corp.,
`121 F.3d 947 (5th Cir. 1997) .....................................................................................................5
`
`Smartflash LLC v. Google, Inc.,
`No. 6:14-cv-435-JRG-KNM, 2015 WL 13840411 (E.D. Tex. Apr. 6, 2015) ...........................5
`
`Statutes and Other Authorities
`
`28 U.S.C. § 1404(a) .........................................................................................................................3
`
`Fed. R. Civ. P. 45(c)(1)(B) ..............................................................................................................9
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`iii
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 5 of 21 PageID #: 2546
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`I.
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`INTRODUCTION
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`Daiichi Sankyo Co., Ltd.’s (“DSC”) attempt to frustrate Seagen Inc.’s (“Seagen”) choice
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`of venue by filing a mirror-image case in Delaware should be rejected. DSC’s transfer bid
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`selectively points to evidence in Delaware, but this is not a Delaware-centered case. DSC, the
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`company that developed the accused drug Enhertu®, is headquartered in Japan, not Delaware.
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`Enhertu was developed and continues to be manufactured in Japan. Seagen, the patentee, is
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`located in Washington State—a fact that DSC’s transfer motion largely ignores.
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`That DSC’s wholly-owned US subsidiary, Daiichi Sankyo, Inc. (“DSI”), is located in
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`New Jersey is of no moment because DSI does not seek transfer to New Jersey. And that
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`nonparty AstraZeneca’s US subsidiary, AstraZeneca Pharmaceuticals LP (“AstraZeneca US”), is
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`located in Delaware is even less meaningful because AstraZeneca US does not even sell Enhertu.
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`Seagen has accused neither of infringement; and neither justifies disregarding Seagen’s choice of
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`venue—especially given the substantial evidence in Texas.
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`II.
`
`BACKGROUND
`
`A.
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`DSC
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`DSC is headquartered in Tokyo, Japan and incorporated under the laws of Japan. (Mot.
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`at 4; Ex. 15 ¶ 2.)1 DSC criticizes Seagen’s choice to sue DSC, and not its US subsidiary, but
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`DSC is the entity that researched, developed, and now manufactures the infringing product,
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`Enhertu, in Japan for sale in the United States. (Dkt. 24-1 ¶¶ 2, 4, 6.)
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`1 All references to “Chivvis Decl.” or “Ex.” are to the Declaration of Matthew A. Chivvis filed
`contemporaneously with this motion.
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`
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`1
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`B.
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`Other Related Co-Pending Litigation
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`Seagen filed this action alleging that DSC’s Enhertu infringes the ’039 patent. (Dkt. 1
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`(“Compl.”) ¶ 4.) Nearly a month later, DSC filed a mirror-image action in the District of
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`Delaware seeking a declaration that Enhertu does not infringe the ’039 patent. DSC filed suit
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`along with DSI and AstraZeneca US. (Ex. 15.) Seagen moved to dismiss or stay that action in
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`accordance with the “first-to-file” rule. (Ex. 16.) That motion is pending, and a hearing has
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`been set for April 23, 2021. There has been no discovery or initial case management conference
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`in Delaware.2
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`C.
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`Location Of Witnesses And Evidence
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`Notwithstanding DSC’s focus on Delaware, the key witnesses for this action are located
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`mainly in Japan and Washington State. The DSC employees who researched, developed,
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`manufacture, and direct the supply of Enhertu are all in Japan. (Dkt. 24-1 ¶ 6;
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`
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` Seagen is headquartered in Washington State. The inventors of the ’039 patent—
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`all current or former Seagen employees—are located on the West Coast: three in Washington,
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`one in California. (Ex. 23; Chivvis Decl. ¶ 20.)
`
`DSC has a subsidiary, DSI, that is headquartered in Baskin Ridge, New Jersey. DSI is
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`the marketing and sales arm of DSC that is licensed to sell Enhertu throughout the United States,
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`including Texas. (Dkt. 24-3 ¶ 3; Ex. 1 at 195:20–196:11; Dkt. 24-4 ¶ 6).) It does so through a
`
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`2 DSC attempts to tie this dispute to a complaint it filed against Seagen on November 4, 2019.
`(Ex. 22.) That action, however, involves a contractual dispute over the ownership of DSC’s
`patents, patent applications, and products, and is separate from this patent infringement dispute
`between DSC and Seagen. The Delaware District Court administratively closed the case on
`November 13, 2020, before the court even held a case management conference. (Ex. 24.)
`
`
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`2
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`

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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 7 of 21 PageID #: 2548
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`
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`network of specialty distributors and pharmacies. (Dkt. 24-3 ¶ 4.) Three of these distributors are
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`
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`located in Texas. (Ex. 5 at 14–15 [Response to Rog. 4]; Ex. 6; Ex. 7; Ex. 19.) One is located in
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`Shreveport, Louisiana. (Ex. 20.)
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`
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`
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` Others involved in the marketing and sale of Enhertu regularly travel to
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`Texas for business purposes. (Ex. 2 at 163:21–164:10, 165:21–166:21; Ex. 3 at 70:7–71:8.)
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`DSC has also contracted with Texas institutions, such as the University of Texas
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`Southwestern Medical Center and the University of Texas MD Anderson Cancer Center, to
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`conduct clinical trials and has sponsored research related to Enhertu. (Ex. 5 at 19 [Response to
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`Rog. 5]; Exs. 17–18.)
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`III. LEGAL STANDARD
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`“For the convenience of parties and witnesses, […] a district court may transfer any civil
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`action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).
`
`To prevail, the movant must show that transfer is “clearly more convenient for both parties
`
`involved, non-party witnesses, expert witnesses, and in the interest of justice.” Aloft Media, LLC
`
`v. Adobe Sys. Inc., No. 6:07–cv–355, 2008 WL 819956, at *3 (E.D. Tex. Mar. 25, 2008)
`
`(emphasis added). Absent such a showing, the plaintiff’s choice of venue should be respected.
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`In re: Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008).
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`3
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`IV. ARGUMENT
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`DSC fails to demonstrate that the District of Delaware is “clearly more convenient” for
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`all parties and witnesses, or that transfer would serve the interest of justice. Aloft Media, 2008
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`WL 819956, at *3.
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`A.
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`The Private Interest Factors Disfavor Transfer
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`1.
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`DSC’s Duplicative Delaware Action Should Be Disregarded
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`DSC’s second-filed, mirror-image suit in Delaware should be rejected based on the first-
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`to-file rule. That rule “generally favors pursuing only the first-filed action when multiple
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`lawsuits involving the same claims are filed in different jurisdictions.” In re: Seattle SpinCo,
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`Inc., 817 F. App’x 987, 988–89 (Fed. Cir. 2020) (unpublished) (denying writ of mandamus
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`directing Eastern District of Texas to transfer case to District of Delaware because first-filed
`
`action was filed in Texas); see also Burger v. Am. Mar. Officers Union, No. 97-31099, 170 F.3d
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`184, at *2 (5th Cir. 1999) (unpublished) (affirming district court’s decision to “defer to the first-
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`filed court in order to avoid unnecessary litigation and the risk of an inconsistent result.”). There
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`is no question this action was filed first. (Compare Compl. at 13 (filed Oct. 19, 2020), with
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`Ex. 15 (filed Nov. 13, 2020).)
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`DSC’s arguments about duplicative litigation (Mot. at 8–9) should be rejected because
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`the duplication is of DSC’s own making. As this Court has stated, “it would be inequitable to
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`suspend litigation in the plaintiff’s chosen forum under the guise of relieving the burdens of
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`litigation from the defendant while the defendant actively and intentionally pursues litigation
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`against plaintiff in another forum.” Rembrandt Wireless Techs., LP v. Apple Inc., No. 2:19-CV-
`
`00025-JRG, 2019 WL 6344471, at *2 (E.D. Tex. Nov. 27, 2019) (denying motion to stay first-
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`filed case in part because defendant was expanding litigation by seeking relief through inter
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`partes review). DSC’s assertion that it seeks to avoid conflicting decisions and duplication rings
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`4
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`
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`hollow given that DSC filed not only the mirror-image case in Delaware, but also a post-grant
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`
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`review.
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`Nor would judicial economy be served by transfer. Seagen filed a motion to stay or
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`dismiss the Delaware case, and the case has not progressed. The Delaware court has entered no
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`schedule and discovery is not open. If DSI and AstraZeneca US believe that Seagen’s suit
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`against Enhertu’s manufacturer DSC might affect them, they can seek to intervene here. That
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`the parties are not identical in the Texas and Delaware suits does not support transfer. To the
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`contrary: The second-filed case should dismissed even if there is not “[c]omplete identity of
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`parties.” Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 951 (5th Cir. 1997).3
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`DSC’s cited case, Smartflash LLC v. Google, Inc., No. 6:14-cv-435-JRG-KNM, 2015
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`WL 13840411, at *7 (E.D. Tex. Apr. 6, 2015), does not support transfer. There, this Court
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`denied transfer to California when there had already been previous litigation that advanced in
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`Texas involving the same patents. Id. at *8. DSC requests exactly what this Court denied in
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`Smartflash—that this Court transfer the case to a venue having no previous experience with the
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`asserted patent. Doing so in these circumstances would not be consistent with “first-to-file”
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`principles. Under well-established law, DSC’s infringement of the ’039 patent should be
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`resolved here, not in Delaware. Genentech, Inc. v. Eli Lilly & Co., 998 F.2d 931, 937 (Fed. Cir.
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`1993), abrogated on other grounds by Wilton v. Seven Falls Co., 515 U.S. 277 (1995) (“The
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`general rule favors the forum of the first-filed action . . . .”).
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`DSC’s other authority is also inapposite. (Mot. at 8 (citing Fujitsu Ltd. v. Tellabs, Inc.,
`
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`3 DSC is also incorrect to point to the Delaware case filed on November 4, 2019. As mentioned
`above, it concerned a separate contractual dispute. At the time DSC filed the complaint, the ’039
`patent had not even issued. The case was administratively closed before the parties even
`initiated discovery, and thus provides no meaningful economies to be gained by maintaining the
`same judge.
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`5
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`
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`639 F. Supp. 2d 761 (E.D. Tex. 2009)).) In Fujitsu, the patent owner asserted counterclaims in
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`
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`the second-filed action, and the second-filed court had already issued a claim construction order.
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`639 F. Supp. 2d at 768. Here, Seagen seeks to proceed only in Texas, and it has filed a motion to
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`stay or dismiss the Delaware case. (Ex. 16.) Moreover, unlike in Fujitsu, the Delaware case has
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`not progressed. The court has not even set a case schedule or opened discovery. The factors
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`favoring transfer in Fujitsu are not present here.
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`2.
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`The Convenience Of The Witnesses Does Not Favor Transfer
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`The Eastern District of Texas is at least as (if not more) convenient for both party and
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`non-party witnesses than Delaware. Neither party is headquartered in either district. DSC is a
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`global company with employees, operations, and assets throughout the United States and around
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`the world, so defending an action in Texas is unlikely to be significantly inconvenient as
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`compared to Delaware. Good Sportsman Mktg. LLC v. Testa Assocs., LLC, No. 6:05CV90, 2005
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`WL 2850302, at *4 (E.D. Tex. Sept. 1, 2005) (“Trying a case in Tyler hardly inconveniences a
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`global company with assets and operations dispersed throughout the United States and the
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`world.”). Indeed, the total travel time from Tokyo, Japan to Marshall, Texas is less than to
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`Wilmington, Delaware.4 See, e.g., McDaniel v. GEICO Gen. Ins. Co., No. 1:12-CV-2028 AWI
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`JLT, 2013 WL 1790167, at *8 n.3 (E.D. Cal. Apr. 26, 2013) (court took judicial notice of flight
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`schedule on venue transfer motion).
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`The location—and, relatedly, the cost of attendance—of non-party witnesses also fails to
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`4 Travel time from Tokyo, Japan to Marshall, Texas is approximately 14.5 hours, including 11.5
`hours by direct flight from Tokyo International Airport to Dallas Fort Worth International
`Airport and 3 hours driving. (Chivvis Decl. ¶ 19.) In contrast, travel time from Tokyo
`International Airport to Wilmington, Delaware is approximately 18 hours, including 17.5 hours
`by indirect flight to Philadelphia International Airport and 40 minutes driving. According to
`Expedia, there are currently no direct flights from Tokyo International Airport to Philadelphia
`International Airport on any airline. (Id. ¶ 19.)
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`6
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`
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`support transfer. Phoenix Licensing, L.L.C. v. Gen. Motors, LLC, No. 2:13-cv-1093-JRG-RSP,
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`
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`2015 WL 1431906, at *3 (E.D. Tex. Mar. 30, 2015) (denying a motion to transfer in part because
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`the defendant was “unable to meet its burden in demonstrating the cost of attendance for willing
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`witnesses.”). DSC argues that the presence of its marketing partners, DSI and AstraZeneca US,
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`on the East Coast should favor transfer to Delaware. But sales and marketing arms located in
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`Delaware and New Jersey do not render Delaware clearly more convenient. The accused drug
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`was developed in Japan. (Dkt. 24-1 ¶ 6.) The inventors of the ’039 patent—all current or former
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`Seagen employees—are located on the West Coast: three in Washington, one in California.
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`(Ex. 23; Chivvis Decl. ¶ 19.) This development evidence will be important for assessing
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`infringement and invalidity (among other issues), and it is not located in Delaware.
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`Although DSI may be incorporated in Delaware, it has no physical presence there,
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`rendering its Delaware incorporation irrelevant in the convenience analysis. By contrast,
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` DSC, for its part, conducted Enhertu clinical trials
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`
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`in Texas in collaboration with the University of Texas MD Anderson Cancer Center and the
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`University of Texas Southwestern Medical Center, and sponsored research on Enhertu presented
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`at the last four San Antonio Breast Cancer Symposia. (Ex. 5 at 19 [Response to Rog. 5]; Ex. 9.)
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`DSC, moreover, admits that there are at least eight distributors and five specialty pharmacies that
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`sell Enhertu in the United States. (Dkt. 24-3 ¶ 4; Ex. 21.) These thirteen businesses are scattered
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`throughout the country, and none is located in Delaware. (Chivvis Decl. ¶ 17; Exs. 25-38.)
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`Eight, in fact, are closer to this District than the District of Delaware, with three located in Texas
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`and one in Louisiana. (Chivvis Decl. ¶ 17.) These witnesses likely have relevant information
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`7
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`regarding the sale and use of Enhertu in Texas.
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`Contrary to DSC’s assertion, Seagen also maintains a notable presence in Texas. Seagen
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`has at least 38 employees across the state, including sales representatives, account managers, and
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`clinical directors. (Declaration of Todd Simpson in Support of Plaintiff Seagen’s Opposition to
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`Defendant DSC’s Motion to Transfer (“Simpson Decl.”) ¶ 2.)
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`Aside from ignoring witnesses located anywhere other than the East Coast, DSC’s
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`motion is suspect because even the ties it claims to Delaware do not withstand scrutiny.
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` DSC’s claim that “there are a substantial number of
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`non-party witnesses likely to be called to testify who reside and/or work in or near the District of
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`Delaware” is vague and unfounded. (Mot. at 10.) See Bush Seismic Techs. LLC v. Am. Gem
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`Soc'y, No. 2:14-CV-1809-JRG, 2016 WL 1545855, at *4 (E.D. Tex. Apr. 15, 2016) (declining to
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`find the convenience of witnesses as a factor in support of transfer because movant “fails to
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`identify [relevant] employees and witnesses in a specific manner.”). The only witness
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`definitively identified so far who is based in Delaware is Mr. Bucci, who works for AstraZeneca.
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`But Seagen has not accused AstraZeneca of infringement given that
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`
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` and Mr. Bucci’s testimony is
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`irrelevant to this patent infringement action. Even if Mr. Bucci were relevant, his presence in
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`Delaware does not justify transfer. Given the parties’ headquarters in Japan and Washington
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`State, most relevant witnesses will be closer to Texas than to Delaware.
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`In any event, the convenience of witnesses is not a core concern here. This Court has
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`8
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 13 of 21 PageID #: 2554
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`
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`previously acknowledged that “[w]itnesses in patent cases are typically more dispersed.”
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`
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`Network-1 Sec. Sols., Inc. v. D-Link Corp., 433 F. Supp. 2d 795, 803 (E.D. Tex. 2006).
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`Consequently, “the importance of witnesses’ cost and distance of travel is diluted since,
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`regardless of where the trial is held, it is nearly certain that many witnesses, including third-party
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`witnesses, will need to travel a significant distance.” Id.
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`3.
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`The Availability Of Compulsory Process Favors This District
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`Courts have the power to compel witnesses to provide in-person testimony “within the
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`state where the person resides, is employed, or regularly transacts business in person, if the
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`person . . . would not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(B). Of the twelve
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`Enhertu distributors and specialty pharmacies identified by DSC in response to Seagen’s
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`Interrogatory No. 4, three—ASD Specialty Healthcare, McKesson Specialty Care Distribution,
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`and McKesson Plasma and Biologics—are located in Texas. (Chivvis Decl. ¶ 17; Ex. 5 at 14-15
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`[Response to Rog. 4]; Ex. 6; Ex. 7; Ex. 19.) Morris & Dickson, another distributor of Enhertu,
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`is located in Shreveport, Louisiana, less than 100 miles from this judicial district providing this
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`Court with subpoena power. (Ex. 20.)
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`In the event that testimony regarding Enhertu distribution becomes relevant to the suit,
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`employees from these non-parties can be compelled to provide in-person testimony. Given their
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`location, it is quicker and cheaper to travel to Marshall, Texas than to Wilmington, Delaware.
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`See, e.g., Plastronics Socket Partners, Ltd. v. Hwang, No. 2:18-CV-00014-JRG-RSP, 2018 WL
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`6589873, at *3 (E.D. Tex. Dec. 14, 2018) (denying a motion to transfer in part because travel
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`from Irving, Texas to Marshall, Texas would not be a “substantial expense” for third-party
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`witnesses). That AstraZeneca US headquarters is in Delaware does not outweigh the witnesses
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`spread throughout the US—particularly given that DSC has failed to specify what evidence
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`AstraZeneca may provide. In any event, DSC has failed to establish that either party would need
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`9
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 14 of 21 PageID #: 2555
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`to compel witnesses within the District of Delaware’s subpoena power: Mr. Bucci offered his
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`testimony voluntarily.
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`This Court has compulsory power over four distributors of Enhertu. At most, Delaware
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`has compulsory power over just two. This factor weighs against transfer.
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`4.
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`Accessibility To Sources Of Proof Favors This District
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`DSC has not shown that transfer to the District of Delaware will result in more accessible
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`sources of proof. In analyzing accessibility, “the Court must look to where most documents are
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`stored.” (Order at 6, Canon, Inc. v. TCL Elecs. Holdings Ltd., No. 2:18-cv-00546-JRG (E.D.
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`Tex. Apr. 24, 2020), Dkt. 145 (citing In re Nintendo, 589 F.3d 1194, 1155 (Fed. Cir. 2009)).) In
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`this case, the developer and manufacturer of the accused product, DSC, is a Japanese company,
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`located in Tokyo, Japan. “As a foreign corporation with documents well outside the United
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`States, the relative ease of access to its documents will not substantially change across different
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`districts and is thus neutral.” AGIS Software Dev. LLC v. HTC Corp., No. 2:17-CV-00514-JRG
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`2018 WL 4680557, at *7 (E.D. Tex. Sept. 28, 2018). Seagen’s documents regarding the
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`development of the ’039 patent are located in Bothell, Washington. Given that most of the
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`material evidence regarding infringement sits in Japan and Washington, this factor weighs
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`against transfer.
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`DSC suggests that evidence relating to the activities of DSI and AstraZeneca US may be
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`located in Delaware or elsewhere on the East Coast, but identifies no specific evidence existing
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`solely within Delaware. (Mot. at 13.) Regardless, given modern technology, documents existing
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`in electronic form should not control the transfer analysis because they can easily be sent
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`anywhere. See Network--1 Sec. Sols, 433 F. Supp. 2d at 799 (disregarding the physical location
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`of documents as factor favoring transfer because “the documents can (and will likely) be
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`exchanged electronically.”).
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`10
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 15 of 21 PageID #: 2556
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` DSC has had no difficulty accessing this information to date, having
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`produced documents directly from DSI in this litigation.
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`Contrary to DSC’s assertion (Mot. at 10-13), the location of a single Delaware-based
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`entity that markets Enhertu and a single New Jersey-based Enhertu distributor should not decide
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`where this dispute should be litigated, especially when three distributors are located in Texas,
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`and one in Louisiana.
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`5.
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`Practical Problems Will Arise If This Case Is Transferred
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`Because this case is well underway, this factor disfavors transfer. This case is certainly
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`further along than either of the Delaware actions DSC relies so heavily on. Seagen served its
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`infringement contentions on January 6, 2021. (Dkt. 29.) This Court held an initial case
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`management conference on January 20, 2021, and a claim construction hearing is scheduled for
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`August 27, 2021—less than five months away. (1/20/2021 Minute Entry; Dkt. 48 at 3.) Merits
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`discovery is well underway, with parties exchanging document productions and engaging in
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`meet and confers over document requests. (Chivvis Decl. ¶ 2.) The Court has set a jury
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`selection date for April 4, 2022. (Dkt. 48 at 1.) The progress already made in this case disfavors
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`transfer. See, e.g., Konami Digital Ent. Co. v. Harmonix Music Sys., Inc., No. 6:08cv286, 2009
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`WL 781134, at *7 (E.D. Tex. Mar. 23, 2009) (denying motion to transfer in part because “[t]he
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`parties have served infringement contentions and exchanged documentary evidence. Should this
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`case now be transferred, both parties would suffer the delay and prejudice of losing both the
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`Markman and trial dates currently set.”).
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`In contrast, the Delaware Action has barely progressed. Seagen filed a motion to stay or
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`5
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`11
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 16 of 21 PageID #: 2557
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`dismiss the complaint, but the court has yet to rule. (Ex. 16.) The court there has not even held a
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`case management conference or set a case schedule. Transfer to Delaware will result in certain
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`delay, and the parties will have to redo at least some of the work already done in Texas. Konami
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`Digital, 2009 WL 781134, at *7 (“Transfer of this case would result in more difficulty, delay,
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`and costs for both parties . . . and as a result, this factor weighs against transfer.”).
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`B.
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`The Public Interest Factors Disfavor Transfer
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`1.
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`Court Congestion Favors This District
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`This factor favors denying the motion to transfer, because the Eastern District of Texas
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`provides the faster path to trial. DSC admits as much. As an exhibit to its motion, DSC
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`provided statistics comparing the median time to trial between the District of Delaware and the
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`Eastern District of Texas. (Dkt. 24-8, Ratliff Decl. Ex. 3.) Based on DSC’s own data, the
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`Eastern District of Texas was 9.6 months faster to trial in 2018, 16 months faster to trial in 2019,
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`and 10.4 months faster to trial in 2020. (Id.) “To the extent that court congestion is relevant, the
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`speed with which a case can come to trial and be resolved may be a factor.” Garrett v. Hanson,
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`429 F. Supp. 3d 311, 319 (E.D. Tex. 2019) (quoting In re Genentech, Inc., 566 F.3d 1338, 1347
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`(Fed. Cir. 2009)). Compare that to Delaware, where no date has been set for jury selection or
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`trial, and where transfer will significantly delay resolution on the merits. See, e.g., Implicit,
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`LLC v. Palo Alto Networks, Inc., No. 6:17-CV-00336-JRG, 2018 WL 1942411, at *7 (E.D. Tex.
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`Feb. 20, 2018) (finding a “difference in time to trial as material” factor weighing against
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`transfer).
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`2.
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`Delaware Does Not Have A Local Interest In This Suit
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`DSC asserts that Seagen’s incorporation in Delaware should matter, but an entity’s state
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`of incorporation does not weigh in favor of transfer. See Allergan Sales, LLC v. UCB, Inc.,
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`No. 2:15-cv-01001-JRG-RSP, 2016 WL 8201783, at *5 (E.D. Tex. Nov. 2, 2016) (declining to
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`12
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 17 of 21 PageID #: 2558
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`give weight to several parties’ incorporation in Delaware because the “state of incorporation is
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`not a connection to ‘the events that gave rise to this suit’”). Seagen is headquartered in Bothell,
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`Washington, and the activities surrounding the invention of the ’039 patent occurred at its
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`Bothell facility. DSC is headquartered in Japan, and as DSC admits, it researched, developed,
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`and manufactures Enhertu in Japan for sale in the U.S. (Dkt. 24-1 ¶¶ 2, 4, 6.)
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`This District, moreover, does have a local interest in this case.
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` DSC also conducted two clinical trials and sponsored research in
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`Texas related to Enhertu. (Ex. 5 at 19 [Response to Rog. 5]; Exs. 17–18.)
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`3.
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`The Other Public Interest Factors Are Neutral.
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`DSC does not dispute—and cannot dispute—that the District of Delaware and the Eastern
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`District of Texas are both familiar with federal patent law.
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`C.
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`Additional Discovery Will Likely Support The Convenience Of This Forum
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`Throughout the venue discovery process, DSC has tried to frustrate Seagen’s ability to
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`obtain evidence relevant to venue. (Exs. 10-12.) DSC objected to Seagen’s document requests
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`and interrogatories, refusing to produce documents relating to DSC’s activities in Texas,
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`revenues from sales in Texas, DSC’s relationship to Enhertu distributors and sellers in Texas,
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`and other information related to venue. (Exs. 5, 13-14.) DSC then produced 30(b)(6)
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`representatives who were wholly unprepared for and inappropriately coached during their
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`13
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`Case 2:20-cv-00337-JRG Document 74 Filed 04/15/21 Page 18 of 21 PageID #: 2559
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`depositions.6
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`For example, Kevin Smith—DSC’s corporate representative for topics 1, 2, 4, and 77—
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`had a script of talking points that he repeatedly recited in response to many of Seagen’s
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`questions. (Ex. 4 (script).