Chief Judge Gregory M. Sleet recently considered defendant’s motion to dismiss in Devicor Medical Products, Inc. v. Biopsy Sciences, LLC, C.A. No 10-1060-GMS (D. Del. Feb. 7, 2013). Defendant moved to dismiss for lack of personal jurisdiction or improper venue “or, in the alternative, [to] transfer under 28 U.S.C. §§ 1404(a) or 1406(a).” Id. at 2. Defendant also contended that plaintiff’s “false marking claims should be dismissed for failure to meet the heightened pleading requirements of Rule 9(b).” Id. Plaintiff filed an alternative motion for jurisdictional discovery. Id. The Court held defendant’s motion in abeyance pending supplemental briefing, and it granted plaintiff’s motion for jurisdictional discovery. Id. at 12.
As to personal jurisdiction, the Court concluded that Delaware’s long-arm statute could be satisfied based on plaintiff’s allegations. “[V]isitors to [defendant’s] Internet homepage were able to click a link [to purchase defendant’s product] . . . and then select ‘United States’ and ‘Delaware’ from separate drop-down menus. After making these selections, the website would provide the visitor with information for [an alleged] Delaware-specific distributor . . . which was located in New Jersey. . . . [Defendant noted] that it [was] not aware of any of its products being marketed, distributed, or sold in Delaware.” Id. at 3 (internal citations and quotation marks omitted). The Court concluded that defendant “might have at least induced infringement in Delaware . . . through its website’s reference to [the distributor],” thereby satisfying Delaware’s long-arm statute, which states that it has personal jurisdiction over a nonresident that “causes tortious injury in the State by an act or omission in this State.” Id. at 9-10.
Turning to the constitutional due process element of personal jurisdiction, the Court explained that the law of the Federal Circuit applied because “the jurisdictional issue is intimately involved with the substance of the patent laws.” Id. at 3 n.3 (internal citations and quotation marks omitted). But “both parties briefed this issue under Third Circuit law. As such, the court will order supplemental briefing [on this issue under Federal Circuit law] as well as limited jurisdictional discovery relating to this point.” Id. at 10-11. It explained that “[i]n the absence of further briefing on the Federal Circuit’s personal jurisdiction standard . . . it is difficult for the court to determine precisely what discoverable facts might be important. The court believes, however, that evidence of sales to Delaware customers is likely to be relevant to this inquiry and will therefore permit discovery on this and related jurisdictional issues.” Id. at 11 n.10.
Because the issue of personal jurisdiction had yet to be resolved, the Court did not reach the issues of improper venue, transfer, or Rule 9(b) pleading sufficiency. Id. at 11-12.