Federal Judiciary

Motion to Transfer Venue Denied in Patent Case

By Michael C. Smith

Novartis Vaccines & Diagnostics v. Hoffman-La Roche, 2:07cv507 (E.D. Tex. Feb. 3, 2009)
Judge: David Folsom
Holding: Motion to Transfer Venue DENIED; Motion to Dismiss DENIED
Well if barbecue sauce isn't a factor in this venue analysis, it should have been. 
Defendant in this pharmaceutical patent case sought transfer from Texas, where barbecue is as God intends, to North Carolina, where for some reason they use vinegar instead of tomato for their sauce. 
Applying both In re VW and In re TS Tech, ("VW Tech") Judge Folsom found that the facts of this case required the opposite result from his ruling in PartsRiver v. Shopzilla last week.
Plaintiff argued, successfully, that both the parties and the sources of prof in this case were distributed nationwide, so that far from increasing convenience, a transfer from Texas to North Carolina would actually increase travel an additional eight hundred miles on average, and substantially inconvenience the West Coast witnesses - upping their travel to 2,400 miles from 1,600.  In addition, some three quarters of a million pages of documents dealing with conception and reduction to practice are in fact currently located in Marshall.  (Defendant claimed that where the documents were located now didn't matter - it's where they were before.  Incidentally, the Fifth Circuit addressed this point with witnesses in VW, holding that it isn't where the plaintiffs lived before that matters (the Eastern District) - it's where they live now.  Judge Folsom declined to consider whether the location of the servers on which the documents were loaded was a consideration in this case, deciding the motion based on other grounds).  Judge Folsom concluded that the case was distinguishable from VW Tech, in both cases of which the physical evidence was confined to a limited region.  A similar analysis applied to the witnesses, which were spread throughout the country.
Judge Folsom concluded that:

(Emphasis in original).  In the second part of the opinion, Judge Folsom denied one defendant's motion to dismiss for lack of personal jurisdiction and improper venue.

Full post as published by Eastern District of Texas Federal Court Practice on February 03, 2009 (boomark / email).