The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Abbott Laboratories, Inc. ("Abbott") brings this action against Defendant Mylan Pharmaceuticals, Inc. ("Mylan"), alleging patent infringement under 35 U.S.C. §271(e)(2). Defendants move to dismiss the complaint for lack of personal jurisdiction or, in the alternative, to transfer the case on the basis of convenienceto the Northern District of West Virginia. Because this district has general jurisdiction over Mylan, and because interests of justice and convenience of the parties do not warrant transfer to West Virginia, the Court denies the motion.
On a motion to dismiss under Rule 12(b)(2), the Court takes all well-pled facts in the complaint as true. Pickrel v. City of Springfield, 45 F.3d 1115, 1117 (7th Cir. 1995). The following facts are drawn from Abbott's complaint ("Complaint at ¶__").
Abbott holds two patents for Sodium Hydrogen Divalproate Oligomer, Patent No. 4,988,731 and Patent No. 5,212,326, each of which is set to expire on January 29, 2008. Complaint at ¶ 7-9.
On August 4, 2000, the Food and Drug Administration ("FDA") approved Abbott's New Drug Application for Depakote, a trademarked product. Id. at ¶ 6. After the FDA approved Depakote, the FDA listed the drug on the "Approved Drug Products with Therapeutic Equivalence Evaluations" list and associated the two patents with Depakote. Id. at ¶¶6,11.
On April 12, 2005, Mylan notified Abbott that it had filed an Abbreviated New Drug Application ("ANDA") with the FDA to make a generic equivalent of Depakote. Id. at ¶ 12-13. On October 5, 2005, Mylan notified Abbott that Mylan had modified its ANDA to include a "Paragraph IV" certification, in which Mylan challenged the validity and/or enforceability of Abbott's two patents for Depakote, as permitted by 21 U.S.C. §355(j)(2)(A)(vii)(IV). Id. at ¶14-15.
By statute, filing a Paragraph IV certification as part of an ANDA is an act of patent infringement. See 35 U.S.C. §271(e)(2). Once a patent holder has received notice that a Paragraph IV certification has been filed that implicates one or more of its patents, the patent holder has 45 days in which to file suit for patent infringement or the ANDA will be approved immediately and the patent protection will be lost. See 35 U.S.C. §271(e)(5); 21 U.S.C. 355(j)(5)(B)(iii). On November 18, 2005 Abbott filed two suits for patent infringement: one in the Northern District of West Virginia, where Mylan has its corporate headquarters, and one in the Northern District of Illinois, where Abbott has its corporate headquarters. Mylan has moved this Court to dismiss the case before it for lack of personal jurisdiction or, in the alternative, to transfer the case to West Virginia where the other suit is pending. Abbott has moved the court in West Virginia to stay the proceedings before it pending resolution of the motion before this Court.
The party seeking to establish jurisdiction bears the burden to make a prima facie showing that the forum has personal jurisdiction over the defendant. Euromarket Designs, Inc. v. Crate & Barrel Ltd., 96 F. Supp. 2d 824, 833 (N.D. Ill. 2000); Electronics for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed. Cir. 2003). When deciding a matter of jurisdiction, a court may look to affidavits and exhibits submitted by each party. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987), superceded on other grounds. Because this case alleges patent infringement, the Court's analysis of personal jurisdiction is guided by Federal Circuit law rather than Seventh Circuit law. Coolsavings.com, Inc. v. IQ. Commerce Corp., 53 F. Supp. 2d 1000, 1002 (N.D. Ill. 1999) citing 3D Systems, Inc. v. Aarotech Labs., Inc., 160 F. 3d 1373, 1377 (Fed. Cir. 1998).
A federal district court applies the personal jurisdiction rules of the forum state. 3D Systems, 160 F.3d at 1376. The Illinois long-arm statute permits courts to assert personal jurisdiction over a non-resident defendant on any basis permitted by the Illinois and the United States constitutions. See 735 ILCS 5/2-209; Central States, Southeast and Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir. 2000). When analyzing personal jurisdiction under Illinois law, there is no substantive difference between the due process limitations on personal jurisdiction set forth by the US Constitution and by the Illinois Constitution. Hyatt Int'l. Corp. v. Coco, 302 F.3d 707, 715 (7th Cir. 2002).*fn1
A plaintiff demonstrates personal jurisdiction over a non-resident defendant through a two-part inquiry: (1) the state's long-arm statute permits personal jurisdiction over the defendant, and (2) that jurisdiction complies with due process. Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed. Cir. 2001). Illinois' long-arm statute permits jurisdiction over a non-resident defendant in two ways.
If the defendant's contacts with the forum state are the same contacts as those at issue in the suit, the defendant may be subject to specific jurisdiction. Red Wing Shoe Co., Inc. v. HockersonHalberstadt, Inc. 148 F.3d 1355, 1359 (Fed. Cir. 1998); Graco, Inc. v. Kremlin, Inc., 558 F. Supp. 188, 191-92 (N.D. Ill. 1982). If the defendant's contacts with the forum state are not the same contacts as those giving rise to the suit, the plaintiff must meet a higher burden and show that the plaintiff has "continuous, permanent, ongoing and systematic" contact with a forum. See LSI Indus., Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir.2000); Milligan v. Soo Line R.R. Co., 775 F. Supp. 277, 279 (N.D. Ill. 1991). This contact, also known in Illinois as "doing business" in the state of Illinois, will make the defendant amenable to all suits in the state, including suits arising from conduct that did not occur in the forum state. Milligan, 775 F. Supp. at 279.
If Illinois has personal jurisdiction over a non-resident defendant, the assertion of jurisdiction must comport with "fair play and substantial justice" - that is, a showing that a suit in the state against the defendant would be fair and reasonable. Red Wing Shoe, 148 F.3d at 1358-59. This second stage has also been described as a showing that the defendant's conduct in the forum state is such that the defendant should "reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (1980).
In this case, Abbott does not allege that Illinois has specific jurisdiction over Mylan. The issue giving rise to this suit is Mylan's Paragraph IV ANDA, the filing of which triggered a statutory right to sue for patent infringement. See 21 U.S.C. §355(j)(2)(A)(vii)(IV). Mylan has not yet taken any action that normally would constitute infringement, such as the manufacture or sale of the infringing product; rather, the statute governing ANDAs specifically creates a "highly artificial" statutory act of patent infringement at the moment of Paragraph IV filing. See 35 U.S.C. §271(e)(2); Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 678 (1990) (statute intended to create a "highly artificial" act of patent infringement to allow subject matter jurisdiction prior to the sale of the generic ...