A federal court in the District of Columbia has dismissed patent-related litigation against a French drug company for lack of personal jurisdiction. Adm’rs of the Tulane Educ. Fund v. Ipsen Pharma, S.A.S., No. 09-2428 (U.S. Dist. Ct., D.D.C., decided March 14, 2011). Tulane University and one of its research professors filed an action against Ipsen Pharma, S.A.S. (Ipsen Pharma) and Ipsen, S.A. (Ipsen) for “correction of inventorship” of several U.S. patents and for damages under Massachusetts state law for unfair business practices, unjust enrichment and constructive trust. The patents at issue cover the results of research into biologically active fragments and analogs of various peptides that are anticipated for use in the treatment of diabetes and obesity.
Ipsen is a French company that holds more than a 95 percent of the share capital and voting rights of its subsidiary Ipsen Pharma, which holds Ipsen’s intellectual property rights. Ipsen and/or Ipsen Pharma have developed and marketed a drug for the treatment of Type 2 diabetes. Ipsen filed a motion to dismiss the claims against it, contending that the court lacked personal jurisdiction over the company.
The court agreed, finding that Ipsen could not be sued as a foreign patentee under section 293 of the U.S. Patent Act. According to the court, Ipsen Pharma is the assignee of record at the U.S. Patent & Trademark Office for the patents at issue. Because the plaintiffs failed to allege that Ipsen itself was the owner or successor of any of the patents, it could not be sued as the patentee. The court also rejected the plaintiffs’ argument that Ipsen could qualify as a patentee under section 293 as a party “who obtains the benefit of a patent.” According to the court, this would constitute a novel statutory interpretation. The court further refused to pierce the corporate veil between Ipsen and its subsidiaries, because this issue had earlier been adjudicated and determined by a federal district court in Louisiana and because nothing in the record indicated that Ipsen and Ipsen Pharma were alter egos.