In the wake of the U.S. Supreme Court's decision in TC
Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514,
122 U.S.P.Q.2d 1553 (2017), many have taken for granted the
decision's applicability to patent infringement actions of all
types, including litigation based on the Biologics Price
Competition and Innovation Act of 2009 (BPCIA). However, reference
product sponsors need not yet resign themselves to a future of
litigation in the biosimilar applicants' states of
incorporation.
The Supreme Court's analysis is firmly rooted in the
legislative history of the patent venue statute, 28 U.S.C. §
1400(b). However, Section 1400(b) is at odds with the legislative
history and intent of the BPCIA, its mechanics, and the nature of
''artificial infringement.'' Moreover, the Supreme
Court's denial of Mylan's petition for certiorari to
reverse the jurisdiction-broadening decision by the U.S. Court of
Appeals for the Federal Circuit in a Hatch-Waxman matter just
months
