As we previously reported, Sanofi-Aventis U.S. LLC, Genzyme Corporation, and Regeneron Pharmaceuticals, Inc. filed a Declaratory Judgment Complaint against Amgen, Inc. and Immunex Corporation in the United States District Court for the District of Massachusetts on March 20, 2017, preemptively seeking a determination that Sanofi and Regeneron’s Dupixent® (dupilumab) product does not infringe U.S. Patent No. 8,679,487 (“the ’487 patent”).  Sanofi and Regeneron also filed a petition for inter partes review of the ’487 patent with the Patent Trial and Appeal Board just a few days later, as we reported here.  The FDA approved Dupixent on March 28, 2017.

Returning fire, Immunex filed a separate Complaint in the United States District Court for the Central District of California on April 5, 2017, accusing Sanofi, Genzyme, and Regeneron of infringing the ’487 patent.  Yesterday, Immunex filed a motion seeking to dismiss the Complaint in the Massachusetts case, or in the alternative, to transfer the case to the Central District of California where Immunex’s later-filed case is now pending.

Amgen and Immunex argue in the motion to dismiss that the Massachusetts court lacks subject matter jurisdiction over Amgen (because Immunex is the sole owner of the ’487 patent and Amgen, the parent company, has no rights in the patent).  They further argue that the Complaint should be dismissed because neither Immunex nor Amgen are subject to personal jurisdiction in Massachusetts, and because the venue is improper in Massachusetts.

Alternatively, even if the Massachusetts court determines that it has sufficient jurisdiction and proper venue, Amgen and Immunex seek to transfer the Massachusetts litigation to the Central District of California, which they allege is the more proper forum, and to have the case consolidated with Immunex’s later-filed litigation.   The California case is Civ. No. 17-cv-02613 and has been assigned to Judge Otero.

The filing of a second litigation and the related motion to dismiss or transfer creates a battle over which court will hear the patent infringement case.   We will continue to provide updates as the litigation continues.