New Strategies for Venue in Hatch-Waxman Litigation

Venue decisions in Hatch-Waxman cases are essential and are seen as being potentially outcome determinative. The Supreme Court’s decision in Daimler significantly increased the requirements for establishing general personal jurisdiction which was historically replied upon by Hatch-Waxman plaintiffs for establishing venue in their preferred districts. Two recent cases out of the District of Delaware have addressed personal jurisdiction in Hatch-Waxman post-Daimler, and have held venue based not on general jurisdiction but rather on the much less common specific jurisdiction. These decisions are controversial as shown by the fact that they were certified for interlocutory appeal. While it is not yet clear what the Federal Circuit will do, there can be no doubt that Daimler has changed venue in Hatch-Waxman cases and it will be essential for Hatch-Waxman litigants to consider the implications of Daimler and the Delaware cases on venue and how best to use those decisions to their advantage—either to maintain venue or transfer it.