Akebia wins precedent-setting battle in Ninth Circuit over § 1782 discovery for use in foreign patent invalidity proceedings

Client(s) Akebia Therapeutics, Inc.

On behalf of Akebia Therapeutics, Inc. Jones Day obtained a precedent-setting decision from the Ninth Circuit to obtain key information for use in foreign patent opposition proceedings seeking to invalidate patents held by FibroGen, Inc. Akebia sought the discovery from FibroGen pursuant to 28 U.S.C.§ 1782, a statute that permits an interested person to seek discovery located in the United States for use in foreign litigation. The district court granted Akebia's discovery request, and the Ninth Circuit affirmed that decision. In a case of first impression, the Ninth Circuit held that the European Patent Office and Japanese Patent Office are foreign "tribunals" under Section 1782, and thus eligible for Section 1782 discovery assistance. The Court further held that an interested person seeking discovery under the statute has Article III standing.

Akebia Therapeutics, Inc. v. Fibrogen, Inc., Case No. 5:14-cv-04678 (N.D. Cal.) (Judge Donato)