Akebia Therapeutics, Inc. v. Fibrogen, Inc.

Opinion by Judge CRABER; Concurrence by Judge WATFORD.

OPINION

Respondent FibroGen, Inc., appeals the district court’s order granting an ex parte application, filed by Petitioner Akebia Therapeutics, Inc., pursuant to 28 U.S.C. § 1782 , for discovery in aid of foreign proceedings. The district court held, among other things, that Akebia was an “interest-. *1110 ed person” within the meaning of § 1782 and that the Japanese and European Patent Offices are “tribunals” to which § 1782 applies. It therefore granted Akebia’s application. Reviewing the district court’s decision for abuse of discretion, Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir.2002), we affirm.

FibroGen is a biotechnology company based in San Francisco, California. It is the owner of certain foreign patents, two of which are relevant to this appeal: European Patent No. EP 1 463 823 and Japanese Patent No. 4804131. Both patents concern the use of various chemical compounds in treating anemia. Akebia, a bio-pharmaceutical company that develops products using similar chemical compounds, disputes the validity of FibroGen’s European and Japanese patents and, accordingly, has initiated…

concurring:

I join the opinion in full, except for the paragraph addressing Article III standing.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKEBIA THERAPEUTICS, INC., No. 15-15274 Petitioner-Appellee, D.C. No. v. 3:14-mc-80294-JD

FIBROGEN, INC.,

Respondent-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Argued and Submitted July 8, 2015—San Francisco, California

Filed July 16, 2015

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

Opinion by Judge Graber; Concurrence by Judge Watford

* The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. 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…