Richards Layton & Finger
 

Judge Andrews Denies Motion to Renew Motion to Dismiss

August 30, 2017

In Indivior Inc. v. Mylan Technologies Inc., C.A. No. 15-1016-RGA (D. Del. July 28, 2017), Judge Andrews denied the defendant’s motion to renew its motion to dismiss for improper venue. The defendant had originally moved to dismiss for lack of venue as well as lack of jurisdiction and failure to state a claim. Before the Court ruled on the motion, the defendant requested that the Court refrain from taking action on the motion pending the Federal Circuit’s ruling in Acorda Therapeutics Inc. v. Mylan Pharmaceuticals Inc., 817 F.3d 755 (Fed. Cir. 2016). A panel of the Federal Circuit had ruled against the defendant, finding personal jurisdiction existed over the defendant based on its ANDA filing and plan to make sales in Delaware, and the defendant had filed a motion for rehearing. More than a year after the Federal Circuit denied the defendant’s petition for rehearing in that case, and six months after the Supreme Court denied certiorari, the defendant renewed its venue challenge. The Court held that the defendant was too late and had consented to venue by participating in litigation, including claim construction, discovery, and the entry of a consent decree as to one of the patents at issue.

Key Point: Venue can be waived by participation in litigation.