Intellectual Property Law

Judge Thynge: Motion to Transfer Denied

By Karen E. Keller, Andrew A. Lundgren et al.

Earlier this week, in Carl Zeizz Meditec, Inc. v. Xoft, Inc., C.A. No. 10-308-LPS-MPT (D. Del. Oct. 13, 2010), Judge Thynge issued a report and recommendation that defendant Xoft's motion to transfer be denied. According to Judge Thynge, "Xoft is incorrect to suggest that mere incorporation in Delaware represents insufficient public interest to litigate in Delaware. As stated earlier, 'Delaware has an interest in litigation regarding companies incorporated within its jurisdiction.'" Id. at 9. Thus, because defendant is incorporated in Delaware, and the other factors "do not strongly favor transfer," the motion was denied. Id. at 9-10.

This is consistent with the actions of other Delaware judges, who generally hold that a defendant's incorporation here is enough to deny a motion to transfer, absent other factors. Other judges, sitting by designation, seem to hold the other way. See, for example, Judge Pisano's two grants of motions to transfer, and his statement that "the lack of connection to Delaware deems the [Defedant's incorporation here] of less significance." Mekiki Co., Ltd., v. Facebook, Inc., C.A. No. 09-975 (JAP), at 7 (D. Del. June 7, 2010))

Carl Zeizz Meditec, Inc. v. Xoft, Inc., C.A. No. 10-308-LPS-MPT (D. Del. Oct. 13, 2010)

Full post as published by Delaware IP Law Blog on October 15, 2010 (boomark / email).