Who to Sue and Where in ANDA Litigation: Personal Jurisdiction Post-Daimler.

Abstract

Historically, courts have afforded patent holders broad discretion to choose where to sue Abbreviated New Drug Application (ANDA) filers. Patent holders' assertions of jurisdiction have typically rested on general personal jurisdiction theories, frequently based on an ANDA filers' conduct within the state, including sales, submission to previous lawsuits, and assignments of agents to accept service of process. Consequently, manyANDA cases have taken place in the Districts of Delaware or New Jersey, or where the patent holder is incorporated, despite the ANDA filer's incorporation in a different state. However, since the Supreme Court's decision in Daimler AG v. Bauman, options for the exercise of personal jurisdiction over ANDA filers have narrowed. This article examines what Daimler means for future ANDA filers, and highlights how many patent holders have failed to take this change into account.