Judge Robinson Denies Motion to Transfer to District of Maryland Based on Related Litigation in Maryland

Judge Robinson recently denied a motion to transfer to the District of Maryland filed by TWi Pharmaceuticals. As Judge Robinson described the motion, “TWi has not presented a typical scenario for transfer, that is, the case clearly could have been brought in the transferee district, and the transferee district is a more convenient one for the moving party. Instead, TWi skipped the first part of the § 1404(a) analysis altogether in its opening papers, concedes that the convenience factors are neutral, and urges the court to transfer based on the singular fact that the Maryland court had rendered a decision on a related patent and, thus, any forum but Maryland should be rejected as an exercise in forum shopping.” Par Pharmaceutical, Inc., et al. v. Breckenridge Pharmaceutical, Inc., et al., C.A. No. 15-486-SLR, Memo. Or. at 4-5 (D. Del. Sept. 10, 2015). Judge Robinson then “decline[d] to characterize a patentee’s choice of venue as ‘forum shopping’” particularly because “any negative connotations associated with ‘forum shopping should have dissipated when Congress enacted the Patent Pilot Program Act.” Id. at 5. Additionally, Her Honor found that “TWi glosses over the fact that the [patent-in-suit] has been asserted against both [defendants]; i.e. if TWi has its way, there most certainly will be judicial inefficiencies, with two courts trying two separate cases over the same patent, possibly reaching inconsistent results” and that the patents asserted in Delaware and Maryland, “although related, are different and the parties in suit are different.” Id. at 6. Thus, Judge Robinson denied the motion to transfer. In addition, Her Honor rejected a separate argument that the Court should dismiss one count of the complaint because the court “was divested of jurisdiction once the FDA approved TWi’s ANDA” because “TWi cited no authority in support of its argument, and the court is aware of none.” Id. at 7.

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