Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 1 of 14 PageID #: 1372
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`Plaintiffs and Counterclaim-Defendants
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`V.
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`AUROBINDO PHARMA USA INC. and
`AUROBINDO PHARMA LTD. ,
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`Defendants and Counterclaim-Plaintiffs.
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`BRISTOL-MYERS SQUIBB COMPANY
`and PFIZER INC.,
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`Plaintiffs,
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`V.
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`MYLAN PHARMACEUTICALS INC.,
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`Defendant.
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`C.A. No. 17-374-LPS
`(CONSOLIDATED)
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`C.A. No. 17-379-LPS
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`Joseph J. Farnan, Jr., Brain E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE
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`Amy K. Wigmore, Gregory H. Lantier, Heather M. Petruzzi, Tracey C. Allen, Jeffrey T. Hantson,
`WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, DC
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`Kevin S. Prussia, Andrew J. Danford, Timothy A. Cook, Kevin M. Yurkerwich, WILMER
`CUTLER PICKERING HALE AND DORR LLP, Boston, MA
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`Attorneys for Plaintiffs Bristol-Myers Squibb Company and Pfizer Inc.
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 2 of 14 PageID #: 1373
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`Stamatios Stamoulis, ST AMOULIS & WEINBLATT LLC, Wilmington, DE
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`Shannon M. Bloodworth, Brandon M. White, PERKINS COIE LLP, Washington, D.C.
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`Robert L. Florence, Karen L. Carroll, PARKER POE ADAMS & BERNSTEIN LLP, Atlanta,
`GA
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`Attorneys for Defendant Mylan Pharmaceuticals Inc.
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`MEMORANDUM OPINION
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`October 18, 2018
`Wilmington, Delaware
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 3 of 14 PageID #: 1374
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`This is a pharmaceutical patent case brought by Bristol-Myers Squibb Company and
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`Pfizer Inc. ("BMS" or "Plaintiffs") pursuant to the Hatch-Waxman Act, 21 U.S.C. § 355(j).
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`(C.A. No. 17-374 D.I. 1) 1 Presently before the Court is Defendant Mylan Pharmaceuticals Inc. ' s
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`("MPI" or "Defendant") renewed motion to dismiss or transfer under 28 U.S.C. § 1406(a) for
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`improper venue. (C.A. No. 17-374 D.I. 178) In its initial motion to dismiss for improper venue,
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`filed on July 25, 2017, MPI contended that venue was improper in this District based on the
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`Supreme Court's decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct.
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`1514, 1519 (2017), which held that § 1400(b) is the "sole and exclusive provision controlling
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`venue in patent infringement actions." (C.A. No. 17-379 D.I. 15 at 3-4) On September 11 , 2017,
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`the Court denied MPI's initial motion without prejudice, as the Court could not determine based
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`on the record then before it whether venue was proper in Delaware. (See C.A. No. 17-379 D.I.
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`36 at 38) The Court, therefore, ordered what it intended to be expedited, venue-related discovery
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`on the question of whether MPI has a "regular and established place of business" under the
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`second prong of§ 1400(b). (See id. at 39, 43 , 45)
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`On May 1 7, 2018, after eight months of limited discovery and three discovery dispute
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`teleconferences, MPI renewed its motion to dismiss, maintaining that venue is improper in this
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`District. The parties submitted briefing (see C.A. No. 17-374 D.I. 179, 192,213) and the Court
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`heard oral argument on July 18, 2018 (see Transcript ("Tr.") (C.A. No. 17-374 D.I. 233)).
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`For the reasons set forth below, the Court will grant MPI's motion.
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`1The instant action is part of a consolidated action involving Plaintiffs and other generic
`pharmaceutical filers.
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`1
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 4 of 14 PageID #: 1375
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`I.
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`LEGAL STANDARDS
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`Generally, "venue provisions are designed, not to keep suits out of the federal courts, but
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`merely to allocate suits to the most appropriate or convenient federal forum." Brunette Mach.
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`Works, Ltd. v. Kockum Indus. , Inc. , 406 U.S. 706, 710 (1972). Federal Rule of Civil Procedure
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`12(b)(3) authorizes a party to move to dismiss a lawsuit for improper venue. When such a
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`motion is filed, the Court must determine whether venue is proper in accordance with the
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`applicable statutes. See Albright v. WL. Gore & Assocs., Inc., 2002 WL 1765340, at *3 (D. Del.
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`July 31 , 2002). Venue in a patent infringement action is governed solely and exclusively by the
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`patent venue statute, 28 U.S.C. § 1400(b). See TC Heartland, 137 S. Ct. at 1516. The general
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`venue statute, 28 U.S.C. § 1391(c), does not have any application in a patent case. See id. at
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`1521.
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`"[U]pon motion by the Defendant challenging venue in a patent case, the Plaintiff bears
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`the burden of establishing proper venue." In re ZTE (USA) Inc., 890 F.3d 1008, 1013 (Fed. Cir.
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`2018). If the Court grants a Rule 12(b )(3) motion based on improper venue, the Court "shall
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`dismiss, or if it be in the interest of justice, transfer such case to any district or division in which
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`it could have been brought." 28 U.S.C. § 1406(a).
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`Generally, "it is not necessary for the plaintiff to include allegations in his complaint
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`showing that venue is proper." Great W Mining & Mineral Co. v. ADR Options, Inc., 434 F.
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`App'x 83 , 86-87 (3d Cir. 2011). Hence, when confronted with a motion to dismiss for improper
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`venue, the Court may consider both the complaint and evidence outside the complaint. See 14D
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`Wright & Miller, Federal Practice & Procedure§ 3826 (4th ed. 2017). The Court will accept any
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`venue-related allegations in the complaint as true, unless those allegations are contradicted by the
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`2
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 5 of 14 PageID #: 1376
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`defendant's affidavits. See Bockman v. First Arn. Mktg. Corp. , 459 F. App' x 157, 158 n.1 (3d
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`Cir. 2012); In re First Solar, Inc. Derivative Litig. , 2013 WL 817132, at *2 (D. Del. Mar. 4,
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`2013). In addition, the Court may consider affidavits submitted by the plaintiff. See Bockman,
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`459 F. App' x at 161 (affirming District Court' s dismissal of complaint "because Defendants
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`satisfied their burden of showing improper venue by offering evidence that the wrongful acts
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`alleged in the Complaint did not occur in Pennsylvania, and Plaintiffs failed to rebut that
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`evidence").
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`II.
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`DISCUSSION
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`The patent venue statute, 28 U.S.C. § 1400(b), provides:
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`Any civil action for patent infringement may be brought in
`the judicial district [ 1] where the defendant resides, or [2] where
`the defendant has committed acts of infringement and has a regular
`and established place of business.
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`It is undisputed that MPI is incorporated in West Virginia (see C.A. No. 17-379 D.I. 1 at
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`12; C.A. No. 17-374 D.I. 179 at 1) and, therefore, does not "reside" in Delaware. See TC
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`Heartland, 137 S. Ct. at 1517 (" [A] domestic corporation 'resides' only in its State of
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`incorporation for purposes of the patent venue statute."). Plaintiffs have proposed alternative
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`bases on which venue here may, nonetheless, be proper.
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`During a March 9, 2018 teleconference, the Court identified three open venue questions it
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`believed were implicated in this case: (1) under the first prong of§ 1400(b), whether the
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`residency of one entity can be imputed to another; (2) under the second prong of§ 1400(b ), what,
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`if any, degree of fraud or abuse of the corporate form is required in order for two entities to have
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`an alter-ego relationship or to in any way impute a regular and established place of business of
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`3
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 6 of 14 PageID #: 1377
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`one entity to another; and (3) assuming some degree of fraud or abuse of corporate form is
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`necessary, whether a corporate entity or corporate family' s structuring of its business
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`relationships can rise to that level of fraud or abuse. (See C.A. No. 17-374 D.I. 119 at 60)
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`MPI contends that dismissal is appropriate because MPI is not incorporated in Delaware
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`and neither performed the alleged act of infringement in Delaware nor maintains a regular and
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`established place of business in Delaware. (See C.A. No. 17-374 D.I. 179 at 6)2 In addition, MPI
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`argues that the residences and activities of non-party affiliates of MPI are irrelevant because
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`statutes and common law-doctrines regarding "alter egos" and "piercing the corporate veil"
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`cannot supplement § 1400(b ). (See id.) It would follow that the Court may not, in any
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`circumstance, impute the residence or regular and established business of one entity to another
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`for purposes of§ 1400(b ). (See id.) Even if such doctrines were relevant to § 1400(b ), in MPI's
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`view Plaintiffs have failed to meet their burden to prove the requisite fraud by clear and
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`convincing evidence. (See id.)
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`BMS responds that the Delaware residency of an MPI subsidiary, Mylan Securitization
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`LLC ("Mylan Securitization"), may be imputed to MPI due to an alleged alter ego relationship
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`between these two entities and, thus, MPI's motion should be denied. (See C.A. No. 17-374 D.I.
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`192 at 1-2) BMS does not, at this time, contend that venue is proper under the second prong of
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`§ 1400(b) - where the inquiry is "whether MPI maintains a 'regular and established place of
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`business' in this District" - as BMS asserts that MPI provided insufficient discovery on this
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`2While MPI's motion is structured as a motion to dismiss or transfer, at oral argument the
`parties agreed that if the Court did not find venue appropriate in this District, it should dismiss,
`not transfer, the case. (See Tr. at 74-75) A related action is pending in the Northern District of
`West Virginia. (See id. at 74; see also Bristol-Myers Squibb Co. et al v. Mylan Pharm. Inc.,
`1:17-CV-00055 (N.D. W. Va.))
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`4
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 7 of 14 PageID #: 1378
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`issue. (See id. at 2 n.2; see also Tr. at 44) In the alternative, BMS contends that, because this is
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`a Hatch-Waxman action, venue should be governed by§ 1391 and, under that statute, there can
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`be no dispute that venue is proper in Delaware.
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`A.
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`Venue Under§ 1400(b)
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`BMS has failed to meet its burden to show that venue is proper in this District. See ZTE,
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`890 F.3d at 1013.
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`As an initial matter, the Court must address whether the residency of one entity may be
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`imputed to another for purposes of satisfying § 1400(b ). MPI contends that under TC Heartland,
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`the venue statute may not be supplemented with other statutory or common-law doctrines. (C.A.
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`No. 17-374 D.I. 179 at 12) BMS counters that under common law, which has not been abrogated
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`by TC Heartland, the residency of one entity may be imputed to another when the entities are
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`corporate affiliates that have freely disregarded their separateness. (C.A. No. 17-374 D.I. 192 at
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`7) The Court agrees with BMS that residency may be imputed under the first prong of the venue
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`statute. See Minn. Mining & Mfg. v. Eco Chem, Inc. ("3M'), 757 F.2d 1256, 1265 (Fed. Cir.
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`1985) ("[P]iercing the corporate veil is appropriate in order to establish venue under the patent
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`venue statutes."); Leach Co. v. Gen. Sani-Can Mfg. Corp., 393 F.2d 183, 186 (7th Cir. 1968)
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`(finding venue in patent infringement case proper as to corporation based on acts of its affiliate);
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`Xodus Med. , Inc. v. Allen Med. Sys., Inc. , 2018 WL 2338763, at *1 (W.D. Pa. May 22, 2018)
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`(piercing of corporate veil is available for establishing proper venue under second prong of
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`§ 1400(b)); Unity Opto Tech. Co. v. Lowe's Home Centers, LLC, 2018 WL 2087250, at *2 (W.D.
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`Wis. May 4, 2018) (same). The Supreme Court' s decision in TC Heartland did not overrule 3M
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`-which was decided in the context of§ 1400(b). See 757 F.2d at 1261 n.8.
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`5
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 8 of 14 PageID #: 1379
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`While related corporate entities are generally legally distinct, piercing the corporate veil,
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`and imputing one entity' s residence to another, may be appropriate in circumstances where one
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`corporation acts as the alter ego of the other. See id. at 1265. Even MPI, ultimately, appears to
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`acknowledge this possibility, while emphasizing the rarity of the applicable requirements being
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`satisfied. (See Tr. at 24-25 ; see also C.A. No. 17-374 D.I. 213 at 4 (MPI reply brief seemingly
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`recognizing that "two distinct entities" may be "treat[ ed] ... as one for venue purposes" where
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`there is "some compelling reason to do so"))
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`The Court is not holding that one entity necessarily is a resident of two places; for
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`instance, there is no dispute that MPI resides solely in West Virginia. (See Tr. at 59) Instead, the
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`Court is allowing for the possibility that, for the purposes of venue in patent cases, there are
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`circumstances under which it is appropriate to impute the residence of one entity to another entity
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`- where there is an alter ego relationship or piercing of the corporate veil - and in those
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`circumstances the law allows the Court to treat one entity as if it were a resident in a second
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`district. 3 See generally In Re BigCommerce, 890 F.3d 978, 986 (Fed. Cir. 2018) (holding that
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`3 A contrary conclusion - that, under no circumstances, may the residency status of one
`entity be imputed to another - would seem to create an opportunity to flout the policies
`underlying the Hatch-Waxman Act and allow for intentional corporate malfeasance. At the
`hearing, BMS' counsel put it this way:
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`[W]e have to think about the equitable impact of this.
`People could set up shell[] [corporations] and just say, well, we
`can't be a residen[t] of two places and therefore you can't get at us.
`That would be very inconsistent with the objectives with federal
`policy, with the whole notion of the Hatch-Waxman framework ....
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`Here, we have an entity that has set up ... subsidiaries and
`affiliates in Delaware. They shouldn' t be allowed, if we can show,
`which we have, that there is an alter-ego[,] to avoid venue here just
`because they have elected to incorporate somewhere else.
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`6
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 9 of 14 PageID #: 1380
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`"for purposes of determining venue under § 1400(b) in a state having multiple judicial districts, a
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`corporate defendant shall be considered to 'reside' only in the single judicial district within that
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`state where it maintains a principal place of business) ( emphasis added).
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`Having concluded that the residency of one entity may be imputed to another, the Court
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`must next consider the showing necessary to impute venue under § 1400(b ). The presumption of
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`corporate separateness may only be overcome by a showing of fraud, injustice, or unfairness. See
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`Trustees of Nat. Elevator Indus. Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d 188,
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`194 (3d Cir. 2003) ("[P]iercing of the corporate veil is an equitable remedy, and therefore the
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`situation must present an element of injustice or fundamental unfairness.") (internal citation and
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`quotation marks omitted); see also Blair v. Infineon Techs. AG, 720 F. Supp. 2d 462,471 (D.
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`Del. 2010) ("While the list of factors is not exhaustive and no single factor is dispositive, some
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`combination is required, and an overall element of fraud, injustice, or unfairness must always be
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`present."). 4
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`The Third Circuit considers multiple non-exclusive factors in evaluating an alleged alter
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`ego relationship,5 including:
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`gross undercapitalization, failure to observe corporate formalities,
`nonpayment of dividends, insolvency of debtor corporation,
`siphoning of funds from the debtor corporation by the dominant
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`(Tr. at 60-61)
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`4The parties agree that Third Circuit law governs, as corporate-veil piercing does not
`present questions unique to patent law. (See Tr. at 45-46, 55)
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`5"Although the tests employed to determine when circumstances justifying 'veil-piercing'
`exist are variously referred to as the ' alter ego,' ' instrumentality,' or 'identity' doctrines, the
`formulations are generally similar, and courts rarely distinguish them." Pearson v. Component
`Tech. Corp. , 247 F.3d 471 , 485 n.2 (3d Cir. 2001)
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`7
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 10 of 14 PageID #: 1381
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`stockholder, nonfunctioning of officers and directors, absence of
`corporate records, and whether the corporation is merely a facade
`for the operations of the dominant stockholder.
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`Pearson, 247 F.3d at 485. "The test, whether or not a particular version requires an element of
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`fraudulent intent, ... is demonstrably an inquiry into whether the debtor corporation is little more
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`than a legal fiction." Id. "Alter ego must be shown by clear and convincing evidence." Lutyk,
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`332 F.3d at 194 (internal quotation marks omitted).6
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`Plaintiffs have failed to meet their heavy burden. See Pearson, 247 F.3d at 485 (burden
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`to establish alter ego relationship "is notoriously difficult for plaintiffs to meet"). BMS contends
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`that Mylan Securitization, an accounts-receivable securitization entity, is an alter ego of MPI.
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`Based on the information it received over several months of discovery, BMS asserts an alter ego
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`relationship exists because Mylan Securitization: (1) is wholly-owned by MPI; (2) does not have
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`its own employees, revenue, profits, Delaware tax filings, or facilities; (3) is represented by the
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`same counsel as MPI in transactions with MPI; (4) has "tiny" costs of operations; and (5) shares
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`one overlapping director with MPI. (C.A. No. 17-374 D.I. 192 at 10-11; see also Tr. at 48-50)
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`In addition, BMS reads Mylan Securitization's status as a special purpose vehicle ("SPV") as
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`meaning that Mylan Securitization is "designed to try to insulate [MPI] from liability in a
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`bankruptcy-type situation" by "isolat[ing] assets in a different entity." (Tr. at 49)
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`While these factors may show a close relationship between MPI and Mylan
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`Securitization, they are insufficient to pierce the corporate veil or render one entity the alter ego
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`of the other. As MPI explains, there is nothing improper about forming a wholly-owned limited
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`6The parties agree that the applicable standard of proof is clear and convincing evidence.
`(See Tr. at 55; see also C.A. No. 17-374 D.I. 179 at 3)
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`8
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 11 of 14 PageID #: 1382
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`liability company for tax purposes. (See Tr. at 65 ; see also C.A. No. 17-374 D.I. 214-18) While
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`BMS attempts to show undercapitalization or insolvency of MPI due to its relationship with
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`Mylan Securitization, it has produced no evidence to support these allegations. Similarly, the
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`fact that MPI and Mylan Securitization share one overlapping director does not demonstrate that
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`corporate formalities have been ignored. While BMS makes much of the fact that MPI and
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`Mylan Securitization were represented by the same counsel in the transaction creating Mylan
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`Securitization (see Tr. at 50-51 ), MPI correctly observes that the transaction is not secret, nor is
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`there evidence to suggest it was a sham or the result of a fraudulent negotiation. Mylan
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`Securitization' s status as an SPY is likewise not nefarious. As BMS itself described, the
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`corporate structure is designed to accelerate the provision of cash to MPI (which should make it
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`easier, not harder, to recover damages from MPI, were it found to be monetarily liable). (See
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`also C.A. No. 17-374 D.I. 193-14 at 76-77) (testimony from knowledgeable witness describing
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`how Mylan Securitization pays cash to MPI for MPI receivables and then securitizes receivables
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`and sells securities to investors) In sum, Plaintiffs have failed to produce any evidence showing
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`that corporate formalities were ignored or that anything illegal or improper occurred in setting up
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`Mylan Securitization. To the contrary, the record evidence shows that the two entities maintain
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`corporate separateness, that Mylan Securitization is a registered LLC with its own books and
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`records, and that all of its documents are publicly available.
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`Even considering all of these factors together and in the light most favorable to BMS,
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`they do not support disregarding MPI' s separate corporate status, as Plaintiffs have not shown
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`any evidence of fraud, unfairness, or injustice. See Cannon Mfg Co. v. Cudahy Packing Co.,
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`267 U.S. 333, 334-35 (1925) (control of subsidiary operations by parent corporation and shared
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`9
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 12 of 14 PageID #: 1383
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`business purpose were insufficient to impute venue absent companies' disregard of corporate
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`separateness); see also Soverain IP, LLC v. AT&T, Inc., 2017 WL 5126158, at *1 (E.D. Tex. Oct.
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`31 , 2017), adopted, 2017 WL 6452802 (E.D. Tex. Dec. 18, 2017) (holding that " [e]ven if venue-
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`related discovery revealed an interdependence between AT&T Services and AT&T Inc., ... this
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`would not be sufficient to impute any AT&T Services place of business to AT&T Inc," given
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`uncontradicted sworn declaration that "corporate form has not been disregarded").
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`Finally, the Court finds further discovery unwarranted. Expedited venue discovery was
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`authorized more than a year ago and, since that time, the Court has handled three discovery
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`disputes between the parties related to the subject of this motion. During the most recent
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`discovery dispute call, the Court concluded it could see only two realistic approaches going
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`forward: either proceed based on the discovery that had been conducted and commence briefing
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`on a renewed motion to dismiss, or require further discovery, which could amount to a fishing
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`expedition, and might not soon end nor ever satisfy Plaintiffs. (See C.A. No. 17-374 D.I. 119 at
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`57-58) The Court determined, over Plaintiffs' objection and despite some doubt as to whether
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`the record was yet adequate, that additional discovery was not warranted, but warned MPI that
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`once briefing was completed it might become clear that a fuller record was needed and the
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`motion would have to be renewed, yet again - after more delay. Today, the Court concludes the
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`record is sufficient and Plaintiffs have been given an adequate opportunity to show venue is
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`proper here, and they have failed to do so. 7 Accordingly, MPI's motion will be granted.
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`7 Additionally, during oral argument, Plaintiffs advised the Court that they no longer seek
`additional discovery as an alternative to denial of MPI' s motion. (See Tr. at 46-47, 58-59)
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`10
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 13 of 14 PageID #: 1384
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`B.
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`Venue Under§ 1391
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`BMS alternatively contends that "the Court need not rely on§ 1400(b) to deny MPI's
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`motion" because venue is proper under§ 1391. (C.A. No. 17-374 D.I. 192 at 16) According to
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`BMS, Hatch-Waxman actions are not governed by§ 1400(b). (See id.) Instead, BMS insists, the
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`text of§ 1400(b), uses of the term "civil action for patent infringement" elsewhere in the U.S.
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`Code, the patent venue statute's legislative history, the structure of and policy behind the Hatch(cid:173)
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`Waxman Act, and general policy considerations all "support treating Hatch-Waxman actions as
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`different from traditional infringement actions for venue purposes." (Id. at 17-19) To BMS,
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`then, "§ 13 91 , rather than § 1400(b ), applies here." (Id. at 16-17)
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`This argument is plainly untimely. Until briefing on MPI's renewed motion, Plaintiffs
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`had never proposed§ 1391 as an appropriate, post-TC Heartland basis for venue in this case.
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`Not once during the prior motion briefing, oral argument, or in any discovery dispute letter or
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`teleconference - over the course of at least eight months, when venue-related discovery was
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`ongoing- did Plaintiffs raise§ 1391. Plaintiffs concede as much. (See Tr. at 38)
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`In any event, Plaintiffs' contention is also unavailing. In TC Heartland, 137 S. Ct. at
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`1518, the Supreme Court clearly articulated that "the patent venue statute alone should control
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`venue in patent infringement proceedings" (internal quotation marks omitted). Here, after MPI
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`filed an Abbreviated New Drug Application ("ANDA") with the U.S. Food and Drug
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`Administration ("FDA"), Plaintiffs initiated a civil action for patent infringement, contending in
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`their complaint that MPI's ANDA filing was an act of patent infringement. (C.A. No. 17-379
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`D.I. 1 at 11 ("This is an action for patent infringement .... ") (emphasis added); see also 35
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`U.S.C. § 271(e)(2)(A) ("It shall be an act of infringement to submit an [ANDA] application ...
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`11
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`

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`Case 1:17-cv-00379-LPS Document 69 Filed 10/18/18 Page 14 of 14 PageID #: 1385
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`for a drug claimed in a patent or the use of which is claimed in a patent ... if the purpose of such
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`submission is to obtain approval ... to engage in the commercial manufacture, use, or sale of a
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`drug .. . claimed in a patent or the use of which is claimed in a patent before the expiration of
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`such patent.") (emphasis added). By filing a Hatch-Waxman patent infringement action,
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`Plaintiffs obtained the benefit of the automatic 30-month stay of FDA approval ofMPI's ANDA,
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`a benefit to which Plaintiffs would not have been entitled if their cause of action were anything
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`other than a claim for patent infringement. See 21 U.S.C. § 355(c)(3)(C) (automatically staying
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`FDA approval of ANDA where, among other conditions, "an action is brought for infringement
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`of the patent" covering drug or use of drug).
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`As this case is incontestably a "civil action for patent infringement," venue is governed
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`solely and exclusively by§ 1400(b). Hence, again, MPI's motion will be granted.
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`III.
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`CONCLUSION
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`For the reasons stated above, the Court will grant MPI's motion to dismiss for improper
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`venue. Consistent with the parties' most recent positions, the Court will not transfer the case but
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`will, instead, dismiss it. An appropriate Order follows.
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`12
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`