We previously reported on Genentech’s complaint in the District of Delaware alleging that Amgen’s MVASI™ (bevacizumab-awwb) infringes over twenty Genentech patents and Amgen’s motion to transfer that complaint to the Central District of California. Today Amgen filed its reply (redacted) in support of transfer. In its reply, Amgen addresses Genentech’s allegation that Amgen has violated § 262 (l)(2)(A), asserting that it complied with the statute. According to Amgen, “[o]nce the notice of commercial marketing is provided pursuant to § 262(l)(8), nothing in § 262 (l)(9)(B) compels the completion of the BPCIA information exchange before a declaratory judgment action can be brought.” Amgen further states: “§ 262 (l)(9)(B) prohibits suit only if the applicant ‘fails to complete an action required … under … paragraph (5) …’” and that “Amgen has met its obligations under § 262 (l)(5)” (emphases in original).
Amgen also argues that the case belongs in the C.D. Cal. because: (1) all parties have their principal place of business in California, and two have their principal place of business in the Central District; (2) the activities giving rise to suit occurred in the C.D. Cal. and should be given more weight than the fact that Amgen will sell product in Delaware; (3) Amgen’s past cases in Delaware are not relevant because the transfer analysis is a fact-specific venue inquiry; (4) the “vast majority” of inventors are in California and are within the subpoena power of the Central District while none are within the subpoena power of Delaware; (5) the relevant documents are in California; and (6) Amgen’s suit is not anticipatory and was necessary to clear any cloud of suspicion that might hang over Amgen.
UPDATE: On January 22, 2018, Judge Sleet denied Amgen’s motion.