Where the Operative Facts Occurred

In assessing this primary factor, courts have looked to the location of defendant’s principal place of business, where the ANDA application was prepared, and where the ANDA product was tested and developed.

Courts have also considered where relevant sales occurred as a potential operative fact. Recognizing that ANDA litigations occur before a generic may sell its product, however, some courts have looked to where sales of the branded product occurred. Others found the location of sales to be irrelevant to the transfer analysis, whether because no sales of the generic product will have occurred as of the relevant time period, or because pharmaceutical sales are generally nation-wide.

Convenience to the Parties

Courts also consider the convenience to the parties in determining whether to transfer an ANDA litigation.  Relevant considerations for this factor include where the companies, their employees, and the inventors are located. The location of relevant documents is also considered, though courts generally find this to be less probative given the current state of electronic discovery.

Courts also weigh the distance the parties would need to travel to either forum. This factor has been given less weight when the forums are located nearby one another.

In determining how strongly to weight the relative convenience of the parties, courts will consider the parties’ financial resources. The relative weight, however, is often considered to be equal in ANDA litigations, which often occur between by larger pharmaceutical companies.

Related Actions in Either Forum

A predominating factor in the motion to transfer analysis is whether there is related litigation in either of the competing venue. In ANDA cases, courts have looked to whether the related litigation involves the same parties, same patents, and same ANDAs. Even if the litigations are not identical in these respects, courts will assess the degree of similarity in determining whether the venue with related litigation is proper, such as if the related litigation involves patents from the same family or similar claim language.

The related litigation may also support transfer based on that court’s familiarity with the product, patent or general technological area. When there are fewer common factors between the litigations or a lower degree of similarity, however, courts may find that the related litigation is insufficient to weigh in favor of that venue.

Other Factors Related to Judicial Efficiency

Factors related to judicial efficiency are frequently found to be persuasive considerations in the motion to transfer analysis. First, courts have considered the relative court congestion of the two venues, and generally held that if the courts are at least relatively equally congested then this factor weights against transfer. Even if there is a difference, however that factor alone may not be enough to disturb the plaintiff’s choice of forum.

Courts have also considered the relative familiarity of the two jurisdictions with patent law, how quickly the different actions have progressed thus far, and the overall speed with which each court could resolve the case.

The Plaintiff’s Choice of Forum

The plaintiff’s choice of forum is usually given weight in the motion to transfer analysis. That default can be overcome, however, when various facts support or undermine the connection between the case and the plaintiff’s choice of forum. For instance, the plaintiff’s choice of forum can be given more or less weight depending on whether the plaintiff is incorporated or conducts business in their chosen forum.

Courts have also found that the plaintiff’s choice of forum is given significant weight where the plaintiff was headquartered nearby the chosen forum, or if the party who sells the accused products is incorporated in the chosen forum.

Less Probative Factors

Courts generally find certain factors to be less probative when determining whether to transfer an ANDA litigation.

As an initial matter, courts have rejected parties’ arguments that the opposing party’s preferences should be disregarded because they are “forum shopping.”  In this respect, courts have noted that such arguments were unpersuasive when the Patent Pilot Program Act was in effect, given that that statute actively encouraged forum shopping.  Courts have also found this argument unpersuasive given that motions to transfer inherently involve both parties attempting to choose their preferred forum.

Additionally, while the local interests of the forums at issue is generally a factor in the motion to transfer analysis, courts typically find the local interests in ANDA cases to be a neutral factor. Courts have supported such rulings on the basis that, e.g., pharmaceuticals are typically sold nationally, and that patent law is federal law and therefore a matter of national concern.

There are exceptions to this general rule, as courts have found local interests to be persuasive if the operative facts occurred in one of the forums, or the courts in one of the forums has previously held that there are local interests related to this type of dispute. Courts will also find this factor to be more probative when the parties are from either of the forums, although this factor has been given less weight where the party is the wholly owned subsidiary of a foreign corporation.

By carefully considering all of the above factors and navigating the complex landscape of venue selection in ANDA litigation, pharmaceutical companies can strategically position themselves for a fair and efficient judicial process.