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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 1 of 28
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`
`TEVA PHARMACEUTICALS
`
`INTERNATIONAL GMBH and
`
`TEVA PHARMACEUTICALS
`
`USA, INC.,
`
`
`
`
`Plaintiffs,
`
`v.
`
`Civil Action No.
`1:18-cv-12029-ADB
`
`ELI LILLY AND COMPANY,
`
`
`
`
`
`
`Defendant.
`
`
`PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S
`MOTION TO TRANSFER, OR, IF NOT TRANSFERRED, THEN TO
`STAY THIS LITIGATION PENDING INTER PARTES REVIEW
`
`
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 2 of 28
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`
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`TABLE OF CONTENTS
`
`INTRODUCTION .......................................................................................................................... 1
`
`FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 3
`
`A.
`
`B.
`
`C.
`
`Teva’s Patents Cover Its Breakthrough Treatment For Millions Of Migraine
`Sufferers .................................................................................................................. 3
`
`Lilly Licensed Its Competing Antibody To The Massachusetts-Based Arteaus
`To Perform Essential Clinical Trials Regarding Migraine ..................................... 3
`
`Lilly Moves to Dismiss Teva’s First Lawsuits ....................................................... 4
`
`ARGUMENT .................................................................................................................................. 5
`
`I.
`
`THE COURT SHOULD DECLINE TO TRANSFER THIS ACTION TO
`INDIANA ............................................................................................................................5
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`Legal Standard ........................................................................................................ 6
`
`Teva’s Forum Choice Is Entitled To Deference And Favors Massachusetts ......... 6
`
`The Convenience Of The Parties Favors Massachusetts ........................................ 8
`
`The Convenience Of Witnesses Favors Massachusetts .......................................... 9
`
`This Case Has Strong Connections To Massachusetts ......................................... 12
`
`The Law To Be Applied Is Neutral ....................................................................... 14
`
`Massachusetts Has Significant Interests In This Litigation .................................. 14
`
`II.
`
`THIS COURT SHOULD DECLINE TO STAY THE LITIGATION PENDING
`IPRS, EVEN IF INSTITUTED ..........................................................................................15
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Legal Standard ...................................................................................................... 15
`
`Lilly’s Stay Motion Is Not Ripe, So The Court Need Go No Further .................. 16
`
`A Stay Will Cause Teva Undue Prejudice And Clear Tactical Disadvantage ...... 16
`
`A Stay Will Not Simplify The Issues ................................................................... 18
`
`The Litigation Timeline Is Not Dispositive .......................................................... 19
`
`CONCLUSION ............................................................................................................................. 20
`
`
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`
`
`i
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 3 of 28
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`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`
`
`Cases
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)..........................................................................................12, 13
`
`ACQIS, LLC v. EMC Corp.,
`109 F. Supp. 3d 352 (D. Mass. 2015) ................................................................................16, 18
`
`Acqis, LLC v. EMC Corp.,
`2016 WL 4250245 (D. Mass. Aug. 10, 2016) ...................................................................17, 18
`
`Actifio, Inc. v. Delphix Corp.,
`2015 WL 1243164 (D. Mass. Mar. 17, 2015) ..................................................................6, 9, 10
`
`Adelson v. Hananel,
`510 F.3d 43 (1st Cir. 2007) ....................................................................................................6, 7
`
`Alcon Mfg., Ltd. v. Apotex, Inc.,
`2007 WL 854026 (S.D. Ind. Mar. 14, 2007)..............................................................................9
`
`Aplix IP Holdings Corp. v. Sony Computer Entm’t, Inc.,
`137 F. Supp. 3d 3 (D. Mass. 2015) ..........................................................................................16
`
`Applera Corp. v. Michigan Diagnostics, LLC,
`2007 WL 4370321 (D. Mass. Dec. 11, 2007) ............................................................................7
`
`Automatic Mfg. Sys., Inc. v. Primera Tech.,
`2013 WL 1969247 (M.D. Fla. May 13, 2013) .........................................................................20
`
`Avci v. Brennan,
`232 F. Supp. 3d 216 (D. Mass. 2017) ......................................................................................12
`
`Beverly Hills Fan Co. v. Royal Sovereign Corp.,
`21 F.3d 1558 (Fed. Cir. 1994)..................................................................................................14
`
`Blackbird Tech LLC v. Cloudflare, Inc.,
`2017 WL 4543783 (D. Del. Oct. 11, 2007) .............................................................................13
`
`Boateng v. Gen. Dynamics Corp.,
`460 F. Supp. 2d 270 (D. Mass. 2006) ........................................................................8, 9, 10, 11
`
`Coady v. Ashcraft & Gerel,
`233 F.3d 1 (1st Cir. 2000) ..........................................................................................................6
`
`
`
`ii
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 4 of 28
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`
`
`Davol, Inc. v. Atrium Med. Corp.,
`2013 WL 3013343 (D. Del. June 17, 2013) .......................................................................16, 17
`
`Depianti v. Jan-Pro Franchising Int’l, Inc.,
`2016 WL 4771056 (D. Mass. Sept. 13, 2016) .........................................................................10
`
`Federal Ins. Co. v. XTRA Intermodal, Inc.,
`2015 WL 4275181 (D. Mass. July 15, 2015) .............................................................6, 9, 10, 12
`
`Garcia-Tatupu v. Bert Bell/Peter Rozelle NFL Player Ret. Plan,
`249 F. Supp. 3d 570 (D. Mass. 2017) ................................................................................5, 6, 7
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................12
`
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947) ...................................................................................................................6
`
`Harpel v. Nicholson,
`2012 WL 4965335 (D. Mass. Oct. 17, 2012).............................................................................8
`
`Invensys Sys., Inc. v. Emerson Elec. Co.,
`2014 WL 4477393 (E.D. Tex. July 25, 2014) .........................................................................18
`
`Irwin Indus. Tool Co. v. Milwaukee Elec. Tool Corp.,
`2016 WL 1735330 (D. Mass. Apr. 28, 2016) ..........................................................................17
`
`JKA, Inc. v. Anisa Int’l Inc.,
`2008 WL 4949126 (D.R.I. Nov. 13, 2008) ..............................................................................14
`
`Karmaloop, Inc. v. ODW Logistics, Inc.,
`931 F. Supp. 2d 288 (D. Mass. 2013) ......................................................................................12
`
`Koninklijke Philips N.V. v. Amerlux, LLC,
`167 F. Supp. 3d 270 (D. Mass. 2016) ....................................................................15, 17, 18, 20
`
`Landis v. North Am. Co.,
`299 U.S. 248 (1936) .................................................................................................................15
`
`Lando & Anastasi, LLP v. Innovention Toys, L.L.C.,
`79 F. Supp. 3d 375 (D. Mass. 2015) ..........................................................................................8
`
`Montoya v. CRST Expedited, Inc.,
`285 F. Supp. 3d 493 (D. Mass. 2018) ......................................................................................12
`
`Piper Aircraft Co. v. Reyno,
`454 U.S. 235 (1981) ...................................................................................................................7
`
`
`
`iii
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 5 of 28
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`
`
`Reckitt Benckiser Pharm., Inc. v. Biodelivery Sci. Int’l, Inc.,
`2015 WL 4461511 (D.N.J. July 21, 2015) ...............................................................................13
`
`RR Donnelley & Sons Co. v. Xerox Corp.,
`2013 WL 6645472 (N.D. Ill. Dec. 16, 2013) ...........................................................................19
`
`Ruckman v. Life Ins. Co. of Am.,
`2007 WL 4218968 (D. Nev. Nov. 29, 2007) ...........................................................................12
`
`SCVNGR, Inc. v. eCharge Licensing, LLC,
`2014 WL 4804738 (D. Mass. Sept. 25, 2014) ...................................................................16, 18
`
`Simes v. Drug Stores II LLC,
`2015 WL 3767113 (D. Mass. June 17, 2015) ..........................................................................11
`
`Sunbeam Prods., Inc. v. Hamilton Beach Brands, Inc.,
`2010 WL 1946262 (E.D. Va. May 10, 2010) ..........................................................................19
`
`Taunton Gardens Co. v. Hills,
`557 F.2d 877 (1st Cir. 1977) ....................................................................................................15
`
`Trover Grp., Inc. v. Dedicated Micros USA,
`2015 WL 1069179 (E.D. Tex. Mar. 11, 2015) ..................................................................16, 19
`
`Trs. of Boston Univ. v. Everlight Elecs. Co., Ltd.,
`2013 WL 12324363 (D. Mass. July 11, 2013) ...................................................................15, 16
`
`Uniloc USA, Inc. v. Acronis, Inc.,
`2017 WL 2899690 (E.D. Tex. Feb. 9, 2017) ...........................................................................18
`
`VirtualAgility Inc. v. Salesforce.com, Inc.,
`759 F.3d 1307 (Fed. Cir. 2014)................................................................................................17
`
`W. Marine Prods., Inc. v. Dolphinite, Inc.,
`2005 WL 1000259 (D. Mass. Apr. 6, 2005) ............................................................................11
`
`Wolverine Proctor & Schwartz, Inc. v. Aeroglide Corp.,
`394 F. Supp. 2d 299 (D. Mass. 2005) ........................................................................................8
`
`Zond, Inc. v. Toshiba Am. Elec. Components, Inc.,
`No. 1:13-cv-11581-DJC, D. 70 (D. Mass. Sept. 30, 2014) ......................................................16
`
`Zond, LLC v. Fujitsu Ltd.,
`No. 1:13-cv-11634-WGY, D. 102 (D. Mass. May 9, 2014) ....................................................16
`
`Statutes
`
`28 U.S.C. § 1400(b) .....................................................................................................................1, 7
`
`
`
`iv
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 6 of 28
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`28 U.S.C. § 1404(a) .........................................................................................................................6
`
`35 U.S.C. § 282(a) .........................................................................................................................18
`
`35 U.S.C. § 316(a)(11) ...................................................................................................................17
`
`Other Authorities
`
`37 C.F.R. § 42.108 .........................................................................................................................18
`
`
`
`
`
`
`v
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 7 of 28
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`The Court should deny Eli Lilly and Company’s motion to transfer this case to Indiana.
`
`INTRODUCTION
`
`Lilly does not claim that venue in Massachusetts is improper under the patent-venue statute,
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`which restricts venue in patent cases to either (1) Lilly’s state of incorporation or (2) “where
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`[Lilly] has committed acts of infringement and has a regular and established place of business.”
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`See 28 U.S.C. § 1400(b). Nor can it. In 2015, Lilly made the intentional decision to expand
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`from its Indiana home into Massachusetts. According to Lilly, it opened its “Innovation Center”
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`in Cambridge because Massachusetts is a “strategic location that will help attract top scientists
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`and bioengineers.” Ex. 1 at 1. Lilly came here because it wanted “to take advantage of the
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`area’s rich engineering talent base and life sciences ecosystem.” Id. Among other things, Lilly
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`sought to leverage “access to a concentration of high-caliber academic institutions, cutting-edge
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`life science and technology companies, and some of the world’s leading talent”—all of which
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`could be found in Massachusetts. Id.
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`Against that backdrop, Lilly now argues that it was “arbitrary” for Teva to file this
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`lawsuit in the Commonwealth or that it was somehow the product of improper forum shopping.
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`Lilly is wrong. Massachusetts is one of only seven jurisdictions (including Puerto Rico and
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`Washington, D.C.) where Lilly has a “regular and established place of business.” It is a
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`jurisdiction that, as Lilly admits, has a thriving “life sciences ecosystem.” It is a jurisdiction
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`where the Court has recently reevaluated and revised its local patent rules to make patent
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`litigation more efficient. And, perhaps most important, it is a jurisdiction where foundational
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`research and development was conducted on Lilly’s infringing drug. Buried in a footnote, Lilly
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`admits that “[a] company named Arteaus Therapeutics, which was based in Cambridge, MA,
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`1
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 8 of 28
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`
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`performed some of the early clinical work for galcanezumab”1—the drug Teva alleges infringes
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`the Patents-in-Suit. Lilly’s footnote, however, does not tell the full story. In fact, in 2011, Lilly
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`licensed the accused antibody, galcanezumab, to Arteaus. For the next three years, it was
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`Arteaus—not Lilly—that studied the efficacy and safety of galcanezumab, specifically focusing
`
`on its use in migraines. The results of that “phase 2 proof-of-concept study” provided the
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`“preliminary evidence that LY2951742 might be beneficial in migraine prevention and
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`provide[d] support for the role of calcitonin gene-related peptide [‘CGRP’] in the pathogenesis
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`of migraine” (Ex. 2 at 1)—that early research and development rests at the foundation of this
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`case: the use of Lilly’s anti-CGRP antibody for the treatment of migraines. After this successful
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`phase 2 study, in 2014, Lilly bought out Arteaus and its rights in galcanezumab. The key
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`individuals responsible for this work still reside in Massachusetts and are not Lilly employees.
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`For these reasons and others addressed in more detail below, Lilly’s motion does not come close
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`to carrying the “heavy burden” Lilly bears to justify overcoming Teva’s choice to litigate this
`
`case here. The Court should deny Lilly’s motion to transfer.
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`Furthermore, because the Patent Trial and Appeal Board (the “PTAB” or “Board”) has
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`not yet even decided whether to grant Lilly’s petitions and institute inter partes review (“IPRs”),
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`the Court does not need to address Lilly’s motion to stay, which fails the relevant test in any
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`event.
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`
`
`
`
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`1 Civ. A. No. 1:18-cv-12029, “Teva III”, D. 19 at 13 n.3. This is the third case in this Court
`relating to this dispute. The others are “Teva I”, Civ. A. No. 1:17-cv-12087, and “Teva II”, Civ.
`A. No. 1:18-cv-10242. All docket citations herein refer to Teva III unless otherwise specified.
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`
`
`
`2
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`

`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 9 of 28
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`FACTUAL AND PROCEDURAL BACKGROUND
`
`A. Teva’s Patents Cover Its Breakthrough Treatment For Millions Of Migraine
`Sufferers
`
`Teva has invested heavily in a first-of-its kind antibody that prevents and/or reduces the
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`incidence of migraines, which affect over 1 billion people worldwide, including over 10% of
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`those in the United States and Western Europe. See D. 1 ¶¶ 1-3. Teva’s antibody,
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`fremanezumab, targets CGRP—a neuropeptide that emerged as a focal point of migraine therapy
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`after years of painstaking research by Teva’s affiliate Labrys Biologics, Inc. (“Labrys”). Id. ¶ 3.
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`These breakthrough discoveries relating to the use of certain antibodies to prevent migraines are
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`protected by the nine Patents-in-Suit, among others, which Teva acquired in 2016. Id. ¶ 4. On
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`September 14, 2018, the Food and Drug Administration (“FDA”) granted Teva approval to
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`market fremanezumab in the United States under the brand name Ajovy™. Id. Ex. 28.
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`B. Lilly Licensed Its Competing Antibody To The Massachusetts-Based Arteaus To
`Perform Essential Clinical Trials Regarding Migraine
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`Lilly is one of the world’s largest pharmaceutical companies, and has been in business for
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`over 140 years. D. 19 at 3. Lilly seeks to compete with Teva with its own biologic migraine
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`treatment. After Teva’s patents were filed, Lilly engineered its own CGRP inhibitor,
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`galcanezumab.
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`After engineering galcanezumab, Lilly did not continue research and development of the
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`drug itself. Instead, as “part of Lilly’s alternative risk-sharing strategy,” in 2011, Lilly licensed
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`galcanezumab to a Massachusetts company, Arteaus Therapeutics (“Arteaus”). Ex. 3 at 1.
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`Arteaus was based in Cambridge, Massachusetts. See Ex. 4 at 1. For the next three years, it was
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`Arteaus, not Lilly, that shepherded galcanezumab through its “phase 2 proof-of-concept study”
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`in 2012 and 2013. Ex. 2 at 1. The Phase 1 results were first presented at the 2013 International
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`Headache Congress that took place in Boston on June 27-30, 2013. See Ex. 5. The results of the
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`3
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 10 of 28
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`Phase 2 study were published in 2014. See Ex. 2. Phase 1 and 2 clinical trials, which study a
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`drug’s “[s]afety and dosage” and “[e]fficacy and side effects,” are crucial steps in a drug’s
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`development process, and only about one third of drugs entering phase 2 survive to move into
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`the next phase of development. Ex. 6 at 2. “Of the nine” companies that were part of Lilly’s
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`“risk-sharing strategy,” “Arteaus [was] the first to reach proof-of-concept and to achieve positive
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`results.” Ex. 3 at 1.
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`Only in January 2014, after Arteaus took galcanezumab safely through the phase 2 proof-
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`of-concept trial, did Lilly re-acquire the rights to the drug for $57 million. See id. After buying
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`back the now-promising molecule, Lilly completed the final clinical trials necessary to support
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`an application to the FDA for approval to market the drug (D. 1 ¶ 16), touted its migraine-
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`treatment knowledge to healthcare providers on Twitter (id. ¶ 23), and prepared for its
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`commercial launch by, among other things, recruiting a Boston-based sales force (id. ¶ 24).
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`C. Lilly Moves To Dismiss Teva’s First Lawsuits
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`Based on Arteaus’s and Lilly’s preparatory work, on October 24, 2017, Lilly submitted to
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`the FDA a Biologics License Application (“BLA”) to market and sell its migraine therapy. D. 1
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`¶ 16. Teva promptly sought declaratory relief that the impending commercial launch of Lilly’s
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`product would infringe its patents. See Teva I, D. 1. Shortly thereafter, Teva brought a second
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`action based on the issuance of additional patents. See Teva II, D. 1. In both cases, Teva alleged
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`that Lilly expected to receive FDA approval for its anti-migraine therapy by the end of 2018
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`(see, e.g., Teva I, D. 21 ¶¶ 16-17), which was in line with FDA statistics for BLA approvals (see,
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`e.g., id. ¶ 18). Lilly moved to dismiss these cases for lack of subject-matter jurisdiction, arguing
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`among other things that these approval statistics were too speculative to create a genuine
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`controversy and “provide[d] no guarantees on when or whether FDA approval will occur.” See,
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`e.g., Teva II, D. 14 at 13-14. The Court ultimately agreed with Lilly, finding Teva’s allegation
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`
`
`
`4
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 11 of 28
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`
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`that Lilly would receive FDA approval in October 2018 too speculative to satisfy the case and
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`controversy requirement. See, e.g., Teva I, D. 42.
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`Teva’s allegations concerning Lilly’s imminent FDA approval and commercial launch
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`ultimately proved correct. Mere hours after the Court dismissed Teva’s complaints, the FDA
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`approved Lilly’s product, Emgality™, and Lilly issued a press release announcing its imminent
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`commercial launch. Teva refiled the instant case in this Court. See D. 1 ¶¶ 5-7. Lilly no longer
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`contends that this Court lacks jurisdiction over Teva’s claims. Now, it seeks to transfer this case
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`to Indiana or to delay the case for up to another 18 months or longer, while the two companies
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`compete in the market for this new class of drugs used in the treatment of migraines.
`
`I.
`
`ARGUMENT
`
`
`THE COURT SHOULD DECLINE TO TRANSFER THIS ACTION TO INDIANA
`
`Lilly has fallen far short of its burden to show that the relevant factors “weigh heavily in
`
`favor of transfer.” Garcia-Tatupu v. Bert Bell/Peter Rozelle NFL Player Ret. Plan, 249 F. Supp.
`
`3d 570, 576 (D. Mass. 2017) (citation and alteration omitted). Lilly has failed to overcome the
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`presumption in favor of Teva’s choice of this forum. Nor has Lilly shown that transfer would be
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`more convenient to Teva. Instead, Lilly merely seeks to shift any inconvenience from Lilly to
`
`Teva. The most important factor in determining whether transfer is appropriate, convenience of
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`witnesses, strongly favors Teva, because Lilly’s witnesses (its employees) will appear at Lilly’s
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`request regardless of location, but Teva cannot compel key witnesses (former Arteaus
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`employees, who are located in Massachusetts) to testify in Indiana. Massachusetts has a
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`significant connection to the issues in this case: Massachusetts is where Arteaus, a Massachusetts
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`company, undertook key development work on galcanezumab—and in fact, Lilly’s infringing
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`product would not be on the market and infringing Teva’s patents today absent Arteaus’s
`
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`
`5
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`

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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 12 of 28
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`
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`involvement. The law to be applied is neutral, and does not favor transfer. Finally,
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`Massachusetts has significant interests which, taken together with its connections to this
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`litigation, favor litigating here, rather than transferring to Indiana.
`
`A. Legal Standard
`
`28 U.S.C. § 1404(a) allows a party in a civil action to move to transfer only “[f]or the
`
`convenience of parties and witnesses, in the interest of justice.” As the “party seeking transfer,”
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`Lilly bears the burden of proof, and there is a “strong presumption in favor” of Teva’s choice to
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`bring suit in this District. Coady v. Ashcraft & Gerel, 233 F.3d 1, 11 (1st Cir. 2000) (citing Gulf
`
`Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Lilly thus bears the “heavy burden,” Actifio,
`
`Inc. v. Delphix Corp., 2015 WL 1243164, at *6 (D. Mass. Mar. 17, 2015), of “establishing that,
`
`on balance, the interests of justice and convenience weigh heavily in favor of transfer.” Garcia-
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`Tatupu, 249 F. Supp. 3d at 576 (citation and alteration omitted).
`
`When considering a venue-transfer motion, courts weigh several factors, including “1)
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`the plaintiff’s choice of forum, 2) the relative convenience of the parties, 3), the convenience of
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`the witnesses and location of documents, 4) any connection between the forum and the issues, 5)
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`the law to be applied, and 6) the state or public interests at stake.” Federal Ins. Co. v. XTRA
`
`Intermodal, Inc., 2015 WL 4275181, at *4 (D. Mass. July 15, 2015) (citation omitted). In the
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`closely related context of forum non conveniens, the Supreme Court has made it clear that
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`“unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should
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`rarely be disturbed.” Gulf Oil, 330 U.S. at 508 (discussing similar factors). These factors, taken
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`together, do not favor transfer to the Southern District of Indiana. They favor Massachusetts.
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`B. Teva’s Forum Choice Is Entitled To Deference And Favors Massachusetts
`
`“[I]t is undisputed that a plaintiff enjoys some degree of deference for his original choice
`
`of forum” regardless whether the forum is the plaintiff’s home. Adelson v. Hananel, 510 F.3d
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`6
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 13 of 28
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`43, 53 (1st Cir. 2007). Although the level of deference increases when the plaintiff sues in its
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`home forum, see id., as courts in this District recognize, the baseline is one of deference to the
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`plaintiff’s choice, even when Massachusetts is not the plaintiff’s home forum. See, e.g., Garcia-
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`Tatupu, 249 F. Supp. 3d at 576 (“weigh[ing] heavily” the “strong presumption in favor of the
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`Plaintiff’s choice of forum” even though Plaintiff resided in California and defendant resided in
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`Maryland); Applera Corp. v. Michigan Diagnostics, LLC, 2007 WL 4370321, at *5 (D. Mass.
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`Dec. 11, 2007) (finding “no reason to depart from [the] presumption” favoring plaintiff’s choice
`
`of forum and denying motion to transfer when plaintiff was a Delaware corporation with a
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`principal place of business in Connecticut and defendant LLC resided in Michigan). Lilly’s
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`argument that Teva’s choice is entitled to “little or no deference” because Massachusetts is not
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`Teva’s home forum (D. 19 at 5) contradicts settled law.2
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`Lilly principally argues that Teva chose Massachusetts arbitrarily, and that Massachusetts
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`has “no material connection” with this case. Id. at 6. This argument is plainly incorrect. To
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`begin, under the patent venue statute, Teva could only bring this lawsuit in one of seven
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`jurisdictions where Lilly has a “regular and established place of business.” See 28 U.S.C. §
`
`1400(b). Of those already limited options, Teva selected a District where: (1) essential
`
`development of galcanezumab, including the proof-of-concept phase 2 trial, took place (see Exs.
`
`2-3); (2) Lilly is committing infringing sales (D. 1 ¶ 6); (3) Lilly has a regular place of business,
`
`the Innovation Center, at which dozens of individuals work (id. ¶¶ 40, 43); and (4) Lilly holds
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`itself out has having a physical “U.S. Location[]” (id. ¶ 39). In this regard, the facts of this case
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`are easily distinguishable from those in the only in-District case cited by Lilly, which involved a
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`2 Lilly attempts to overcome this presumption by claiming that Teva GmbH’s choice of forum
`deserves little deference because it is a Swiss company. D. 19 at 6. But Teva USA is not a
`foreign plaintiff, and Teva GmbH’s status has no effect on Teva USA’s choice of forum. The
`lone case Lilly cites, Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), is distinguishable, as that
`case was brought on behalf of entirely foreign plaintiffs, concerning a plane crash abroad.
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`7
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 14 of 28
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`
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`dispute for attorneys’ fees filed in Massachusetts about work done on a lawsuit litigated entirely
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`in Louisiana. See Lando & Anastasi, LLP v. Innovention Toys, L.L.C., 79 F. Supp. 3d 375 (D.
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`Mass. 2015). In sum, Teva’s choice of forum is entitled to deference, and this factor weighs
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`significantly against transfer.3
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`C. The Convenience Of The Parties Favors Massachusetts
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`This Court should deny Lilly’s motion because Lilly “has not shown that transfer . . .
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`would be more convenient for [Teva],” even though “in evaluating [Lilly’s] motion, this court
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`must consider the convenience of both parties.” Wolverine Proctor & Schwartz, Inc. v.
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`Aeroglide Corp., 394 F. Supp. 2d 299, 312 (D. Mass. 2005). Lilly simply argues that litigating
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`near its headquarters in the Southern District of Indiana would be more convenient for Lilly, and
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`would be no less convenient for Teva. See D. 19 at 7-8. But Lilly has not attempted to show that
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`litigating in Indiana would be more convenient for Teva, and the Court should weigh this factor
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`against Lilly for that reason alone. See Wolverine Proctor & Schwartz, 394 F. Supp. 2d at 312
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`(refusing to transfer when the defendant did not show that transfer would be more convenient for
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`the plaintiff).
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`Moreover, Lilly has not actually articulated any reason that litigating in Massachusetts
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`would be inconvenient for Lilly as a defendant (rather than arguments about witnesses and
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`evidence, addressed below). The convenience factor “focuses on the comparative financial
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`abilities of the parties.” Boateng v. Gen. Dynamics Corp., 460 F. Supp. 2d 270, 275 (D. Mass.
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`2006). Lilly has not made any argument that litigating here would cause financial hardship—
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`which, as a multinational, multibillion-dollar corporation currently ranked 129 on the Fortune
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`3 Moreover, even if this Court were to afford less deference to Teva’s choice of forum, that
`decision would not be dispositive. See Harpel v. Nicholson, 2012 WL 4965335, at *6 (D. Mass.
`Oct. 17, 2012) (“Even when the court gives [plaintiff’s] choice less deference because
`Massachusetts is not his home forum, it still outweighs [defendant’s] case for transfer.”).
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`8
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 15 of 28
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`500, it would be hard-pressed to do.4 This Court’s decision on this factor in XTRA Intermodal,
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`2015 WL 4275181, is instructive. As here, none of the parties in XTRA Intermodal was based in
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`Massachusetts but all were “business entities, with places of incorporation and headquarters
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`scattered throughout the country.” Id. at *5. As here, the movant did “not argue[] that it lacks
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`the financial means to litigate in” plaintiff’s chosen forum. Id. “Given the wide range of
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`geographic locations and the divergent preferences of the parties,” this Court concluded that the
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`“private convenience factor [did] not weigh strongly in favor of transfer” and noted that transfer
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`on this factor would “‘merely . . . shift the inconvenience from one party to the other.’” Id.
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`(quoting Boateng, 460 F. Supp. 2d at 275); accord Alcon Mfg., Ltd. v. Apotex, Inc., 2007 WL
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`854026, at *2 (S.D. Ind. Mar. 14, 2007) (noting that “[b]oth Plaintiffs and Defendants are
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`corporations able to bear the expense of litigation” which did not “weigh[] in favor of transfer”).
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`As in XTRA Intermodal, the effect of transfer would simply be to shift the inconvenience
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`of litigating from Lilly to Teva, particularly when, as described below, certain relevant witnesses
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`involved in the development of galcanezumab are in Massachusetts, and Teva cannot compel
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`them to appear in Indiana. This factor does not favor transfer, particularly since Lilly maintains
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`an office with dozens of employees across the river in Cambridge. D. 1 ¶¶ 39-43. See Actifio,
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`2015 WL 1243164, at *7 (noting that where defendant “has a Massachusetts office . . . transfer
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`would merely transfer any relative inconvenience” from one party to another, which “weighs
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`against transfer”).
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`D. The Convenience Of Witnesses Favors Massachusetts
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` “[T]he convenience of expected witnesses is probably the most important factor.” XTRA
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`Intermodal, 2015 WL 4275181, at *5 (quoting Boateng, 460 F. Supp. 2d at 275). “A party
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`
`4 See Eli Lilly (LLY) Stock Price, Financials, and News, Fortune (last accessed Nov. 28, 2018),
`https://bit.ly/2KEvWqA.
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`9
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`Case 1:18-cv-12029-ADB Document 26 Filed 12/04/18 Page 16 of 28
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`seeking transfer on this basis must, therefore, specify the key witnesses to be called,
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`accompanied by a general statement of what their testimony will entail.” Id. (quoting Boateng,
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`460 F. Supp. 2d at 275) (emphasis added). Lilly has utterly failed to satisfy this obligation.
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`Instead of providing the required specificity, Lilly generally asserts that “the vast majority of
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`likely Lilly witnesses . . . are employees based in Lilly’s Indianapolis headquarters.” D. 19 at 9.
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`But Lilly does not name these witnesses, or even say how many there are; rather, Lilly merely
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`provides broad