PhRMA has filed an interesting brief arguing that proper-venue in ANDA patent-infringement cases under §271(e)(2) should be determined under the general venue statute (28 U.S.C. §1391) rather than the patent-specific venue statute (28 U.S.C. §1400(b)).
Section 1400(b) is an exception to the general venue statute, 28 U.S.C. §1391. It should be construed narrowly and extended to §271(e)(2) actions only if doing so is consistent with the text and purpose of both statutes. But the text of §1400(b) cannot be reconciled with §271(e)(2); the enacting Congress in 1897 did not contemplate hypothetical acts of infringement; and extending §1400(b) to §271(e)(2) actions would conflict with the Hatch-Waxman Act’s purpose. Maxims of statutory interpretation therefore indicate that the general venue statute should govern §271(e)(2) actions.
PhRMA Brief on Venue. Section 1400(b) offers much narrower venue choices than that available under §1391, and PhRMA members are arguing for a broader forum selection choices for suing generic oncomers. Valeant Pharmaceuticals v. Mylan Pharmaceuticals. In its original decision, the Federal Circuit applied the narrow venue of 1400(b), but an en banc petition is pending before the court.