By Bryan K. Wheelock, Principal
In Acorda Therapeutics, Inc. v, Mylan Pharmaceutical Inc., [2015-1460) (March 18, 2016), the Federal Circuit affirmed that Mylan was subject to specific personal jurisdiction in the District of Delaware, The Federal Circuit said that under Fed. R. Civ. P. 4(k)(1)(A), the district court had personal jurisdiction over Mylan if Mylan would be “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located,” and there is no dispute that Mylan would be subject to Delaware courts’ jurisdiction under Delaware’s long-arm statute, Del. Code Ann. tit. 10, § 3104, as long as Delaware’s exercise of personal jurisdiction over Mylan would be consistent with the Fourteenth Amendment’s Due Process Clause.
The Federal Circuit noted that Mylan had taken the costly, significant step of applying to the FDA for approval to engage in future activities—including the marketing of its generic drugs— that will be purposefully directed at Delaware (and, it is undisputed, elsewhere). The Federal Circuit said that if Mylan had already begun its deliberate marketing of these drugs in Delaware, there is no doubt that it could be sued for infringement in Delaware. The Federal Circuit concluded that the minimum-contacts standard is satisfied by the particular actions Mylan has already taken—its ANDA filings—for the purpose of engaging in injury-causing and allegedly wrongful marketing conduct in Delaware.