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Akebia Therapeutics, Inc. v. Fibrogen, Inc.

United States Court of Appeals, Ninth Circuit

July 16, 2015

AKEBIA THERAPEUTICS, INC., Petitioner-Appellee,
v.
FIBROGEN, INC., Respondent-Appellant

Argued and Submitted July 8, 2015

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:14-mc-80294-JD. James Donato, District Judge, Presiding.

SUMMARY[**]

Discovery

The panel affirmed the district court's order granting an ex parte application, filed by Akebia Therapeutics, Inc., pursuant to 28 U.S.C. § 1782, for discovery in aid of foreign proceedings.

Title 28 U.S.C. § 1782 permits any " interested person" to file an application in the district court requesting that the court order another person to produce testimony or documents for use " in a proceeding in a foreign or international tribunal."

FibroGen, Inc. is the owner of certain foreign patents. Akebia disputed the validity of FibroGen's European and Japanese patents, and initiated opposition proceedings in both the European Patent Office and the Japanese Patent Office. In its application to conduct discovery, Akebia sought permission to serve FibroGen with document and deposition subpoenas relating to the pending foreign proceedings.

The panel held that Akebia was an " interested person" seeking to invoke the discovery mechanism set forth under § 1782. The panel held that Akebia, which is a party to the foreign proceedings underlying this case, had a " reasonable interest" in obtaining judicial assistance, and therefore, could apply for judicial assistance pursuant to § 1782. The panel also held that Akebia demonstrated it had Article III standing to invoke the power of a federal court where Akebia had an individualized, legally protected interest in receiving the information it sought, and it demonstrated an " injury in fact" caused by FibroGen's failure to disclose.

The panel held that both the European and Japanese Patent Offices were " foreign or international tribunal[s]" within the meaning of § 1782. The panel also held that the scope of discovery permissible under § 1782 was not limited by certain later-enacted provisions of the Leahy-Smith America Invents Act. Finally, the panel held that the district court was not required to address explicitly every factor or argument, and the district court properly exercised its discretion in granting the application.

Judge Watford concurred, joining the opinion in full, except for the paragraph addressing Article III standing.

Philip L. Hirschhorn (argued), Buchanan Ingersoll & Rooney PC, New York, New York; S. Lloyd Smith, Todd R. Walters, Buchanan Ingersoll & Rooney PC, Alexandria, Virginia; Steven A. Ellis, Goodwin Procter LLP, Los Angeles, California, for Respondent-Appellant.

Lawrence D. Rosenberg (argued), Jones Day, Washington, D.C.; Gregory Louis Lippetz, Jones Day, Palo Alto, California; J. Patrick Elsevier, Jones Day, San Diego, California, for Petitioner-Appellee.

Before: Susan P. Graber and Paul J. Watford, Circuit Judges, and Paul L. Friedman,[*] District Judge.

OPINION

Susan P. Graber, Circuit Judge.


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