This morning the Federal Circuit released a precedential opinion in a patent case, affirming the District of New Jersey’s judgment that the plaintiff did not establish proper venue under the patent venue statute with respect to the named domestic defendants and did not state a claim upon which relief could be granted with respect to the named foreign defendant. The Federal Circuit also released five Rule 36 judgments. Here is the introduction to the opinion and a list of the Rule 36 judgments.

Celgene Corp. v. Mylan Pharmaceuticals Inc. (Precedential)

This is a case about venue and pleading under the Hatch-Waxman Act.

Celgene Corporation (“Celgene”) markets pomalidomide as a multiple-myeloma drug under the brand name Pomalyst. It has patents related to that drug, but many drug companies viewed the validity or applicability of those patents with skepticism and sought to bring generic pomalidomide to market. They applied to the FDA to do so; Celgene sued. This appeal concerns Celgene’s suit surrounding the abbreviated new drug application (“ANDA”) submitted by Mylan Pharmaceuticals Inc. (“MPI”).

Celgene filed that suit in New Jersey. Celgene is headquartered there, but none of the defendants are. Rather, MPI is based in West Virginia, Mylan Inc. in Pennsylvania, and Mylan N.V. in Pennsylvania and the Netherlands. The district court ultimately dismissed this case for improper venue (as to MPI and Mylan Inc.) and for failure to state a claim (as to Mylan N.V.). Celgene appeals.

For the reasons below, we agree with the district court that venue was improper in New Jersey for the domestic-corporation defendants, MPI and Mylan Inc. That is, Celgene did not show that those defendants committed acts of infringement in New Jersey and have a regular and established place of business there. We also agree that, as to the foreign-corporation defendant, Mylan N.V., Celgene’s pleadings failed to state a claim upon which relief could be granted. We therefore affirm.

Rule 36 Judgments