Case of the Day: Conformis v. Zimmer Biomet Holdings

The case of the day is Conformis, Inc. v. Zimmer Biomet Holdings, Inc. (D. Del. 2022). Conformis sued Medacta International SA, a Swiss company. The case is for patent infringement, though the opinion doesn’t tell us anything about the underlying dispute. Anyway, Medacta International moved to dismiss for insufficient service of process, arguing that while Conformis had translated its Second Amended Complaint, it had not translated the exhibits to the Second Amended Complaint. The exhibits were patents, and so as you can imagine, the cost of translating them would have been pretty steep.

Switzerland does require translation of the documents to be served. The judge rote that it wasn’t clear to him whether Switzerland requires translation of exhibits. This seems to me to be overstating the uncertainty. I think that states that require translations of pleadings do require translations of exhibits to the pleadings, and I wouldn’t try to get away without translations unless I had a pretty clear statement from the foreign central authority or advice from knowledgable local counsel. But even if translations are required, the court correctly (in my view) focused on something else. The Swiss central authority had executed the request for service and (I presume–the decision doesn’t say) returned a certificate of service under Article 6. As a general rule, there is no reason for a US judge to be more protective of the foreign state’s requirements than is the foreign state itself. In this situation, in my view, any US translation requirements come from the Due Process Clause, not from the Convention.

The court went on to reject a personal jurisdiction argument and then to dismiss the complaint for failure to state a claim, on the grounds that complaint did not allege an act of infringement in the United States. So the service and jurisdictional points turned out to be much ado about nothing.

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