FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKEBIA THERAPEUTICS, INC.,

Petitioner-Appellee,

v.

FIBROGEN, INC.,

Respondent-Appellant.

No. 15-15274

D.C. No.

3:14-mc-80294-JD

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.
2 AKEBIA THERAPEUTICS V. FIBROGEN

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 IIIstanding

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AKEBIA THERAPEUTICS V. FIBROGEN 3

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.

COUNSEL

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.
4 AKEBIA THERAPEUTICS V. FIBROGEN

OPINION

GRABER, Circuit Judge:

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 “interested

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 biopharmaceutical company

that develops products using similar chemical compounds,

disputes the validity of FibroGen’s European and Japanese

patents and, accordingly, has initiated opposition proceedings

in both the European Patent Office and the Japanese Patent

Office. Neither Office has established procedures through

which Akebia may seek discovery of potentially relevant

information located in the United States for use in those

foreign proceedings.

Pursuant to 28 U.S.C. § 1782, Akebia filed, in the United

States District Court for the Northern District of California,

an application to conduct discovery in aid of foreign
AKEBIA THERAPEUTICS V. FIBROGEN 5

proceedings. Specifically, Akebia sought permission to serve

FibroGen with document and deposition subpoenas relating

to the pending foreign proceedings and relating to “additional

foreign adversarial proceedings being contemplated by

Akebia.” The district court granted Akebia’s application but

imposed a restrictive protective order because of the

confidential nature of the information sought. FibroGen

timely appeals.

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.” The statute’s purpose is twofold: to

“provid[e] efficient assistance to participants in international

litigation” and to “encourag[e] foreign countries by example

to provide similar assistance to our courts.” Intel Corp. v.

Advanced Micro Devices, Inc., 542 U.S. 241, 252 (2004)

(internal quotation marks omitted). In this appeal, FibroGen

argues that (1) Akebia is not an “interested person” within the

meaning of § 1782, (2) neither the European Patent Office

nor the Japanese Patent Office is a “tribunal” to which § 1782

applies, (3) the scope of discovery permissible under § 1782

is limited by certain later-enacted provisions of the LeahySmith America Invents Act (“AIA”), and (4) the district court

abused its discretion by failing to consider certain factors in

its decision to order discovery. We address each of those

arguments in turn.

1. “Interested Person” and Standing

An “interested person” seeking to invoke the discovery

mechanism set forth under § 1782 may include “’not only

litigants before foreign or international tribunals, but also
6 AKEBIA THERAPEUTICS V. FIBROGEN

foreign and international officials as well as any other person

whether he be designated by foreign law or international

convention or merely possess a reasonable interest in

obtaining [judicial] assistance.’” Intel, 542 U.S. at 256–57

(quoting Hans Smit, International Litigation Under the

United States Code, 65 Colum. L. Rev. 1015, 1027 (1965)). 

Akebia is a party to the foreign proceedings underlying this

case; indeed, it is the entity that seeks to invalidate

FibroGen’s European and Japanese patents because of their

potential effect on the nature of the products that Akebia

develops. Accordingly, Akebia has a “reasonable interest” in

obtaining judicial assistance and, therefore, may apply for

judicial assistance pursuant to § 1782.

Because Akebia seeks to invoke the power of a federal

court, it also must demonstrate that it has standing to do so

under Article III. See Vivid Entm’t, LLC v. Fielding,

774 F.3d 566, 573 (9th Cir. 2014) (noting that “’any person

invoking the power of a federal court must demonstrate

standing to do so’” (quoting Hollingsworth v. Perry, 133 S.

Ct. 2652, 2661 (2013))). FibroGen contends that Akebia

lacks standing because it cannot show an individualized,

legally protected interest. But Akebia has an interest in

receiving the information that it seeks, and it has a statutory

right, as an “interested person” under § 1782, to receive that

information. It has demonstrated an “injury in fact,” caused

by FibroGen’s failure to disclose, which suffices to satisfy

Article III. See Fed. Elections Comm’n v. Akins, 524 U.S. 11,

21 (1998) (noting that a person generally suffers an injury in

fact when that person fails to obtain information that,

pursuant to a statute, must be disclosed (citing Pub. Citizen v.

U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989))).
AKEBIA THERAPEUTICS V. FIBROGEN 7

2. Foreign or International “Tribunal”

FibroGen’s second argument pertains to the meaning of

the word “tribunal” as it is used in § 1782. Specifically,

FibroGen argues, because the proceedings in the European

and Japanese Patent Offices are not court proceedings and

“do not resemble civil trials,” those entities cannot be

considered “tribunals” to which § 1782 applies. We disagree.

A “proceeding in a foreign or international tribunal”

within the meaning of § 1782 “’is not confined to proceedings

before conventional courts,’ but extends also to

‘administrative and quasi-judicial proceedings.’” Intel,

542 U.S. at 249 (quoting S. Rep. No. 1580, at 7 (1964)). 

Both of the foreign patent offices here conduct quasi-judicial

proceedings. Those proceedings take place within the agency

but carry many of the hallmarks of traditional judicial

proceedings: serving as first-instance decision-makers tasked

with resolving patent validity disputes, id. at 257, collecting

and reviewing evidence in order to resolve those disputes, and

permitting their decisions to be appealed and become subject

to further review. Just as in Intel, we see “no warrant [for this

court] to exclude” the foreign proceedings here from the

ambit of § 1782. Id. at 258; see also id. (“The term ‘tribunal’

includesinvestigatingmagistrates, administrative and arbitral

tribunals, and quasi-judicial agencies, as well as conventional

civil, commercial, criminal, and administrative courts.’”

(alterations omitted) (quoting Smit, 65 Colum. L. Rev. at

1026 n.71)).

3. Leahy-Smith America Invents Act

FibroGen next argues that the scope of § 1782 should be

construed together with the provisions of the later-enacted
8 AKEBIA THERAPEUTICS V. FIBROGEN

AIA, which amended the Lanham Act to provide for, among

other things, post-grant review proceedings in the U.S. Patent

& Trademark Office (“USPTO”). See Leahy-Smith America

Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011). 

FibroGen views Congress’ decision to enact those provisions

of the AIA, which it believes “severely limit discovery for

U.S. patent proceedings” in the USPTO, to signal a

congressional intent to limit the scope of discovery

permissible in proceedings worldwide. Thus, according to

FibroGen, reading § 1782 to permit discovery in these foreign

proceedingswould conflict—in text, structure, and purpose—

with the current state of patent law.

FibroGen overstates the tension, if any, that exists

between § 1782 and the AIA. Section 1782 applies to any

“proceeding in a foreign or international tribunal,” including

a criminal proceeding. It does not exclude patent

proceedings, and it makes no mention of proceedings in

United States courts. As noted above, the statute has two

broad purposes: (1) to assist participants in international

litigation, and (2) to encourage foreign countries to provide

similar assistance to litigation in the United States. Intel,

542 U.S. at 252. Neither of those purposes affects domestic

proceedings in the USPTO.

The AIA, by contrast, is far more limited. It revised

existing “inter partes review” proceedings and created an

entirely new administrative proceeding titled “post-grant

review,” available for certain patent claims upon a certain

threshold showing of merit. See AIA, 125 Stat. at 299, 306. 

Although it limits discovery with respect to the former, it

permits discovery of any “evidence directly related to factual

assertions advanced by either party” in a post-grant review

proceeding. 125 Stat. at 308. The AIA applies only to
AKEBIA THERAPEUTICS V. FIBROGEN 9

proceedings conducted in the United States, making no

mention of foreign proceedings.

We see no apparent conflict, and certainly not an

“irreconcilable” one, between § 1782 and the AIA. See

Morton v. Mancari, 417 U.S. 535, 551 (1974) (requiring an

“irreconcilable conflict” to justify a repeal by implication and

noting that the “intention of the legislature to repeal ‘must be

clear and manifest’” (quoting United States v. Borden Co.,

308 U.S. 188, 198 (1939))). We therefore hesitate to read

into the AIA any intent to impliedly repeal, or limit the scope

of, an unrelated statutory provision. See id. The district court

properly applied § 1782 to the foreign patent office

proceedings underlying this case.

4. District Court’s Exercise of Discretion

Finally, FibroGen contends that the district court abused

its discretion by giving “short shrift” to the nonexclusive

factors that the Supreme Court set forth in Intel, and to

“other factors, such as the effect broad discovery in patent

proceedings would have in the United States contrary to the

express intent of Congress.” We are not persuaded. It is

clear from the transcript that the district court considered the

nature of the foreign proceedings, the receptivity of the

foreign government to discovery, the nature of foreign proofgathering restrictions, and the intrusive nature of the

requested production, in granting Akebia’s request. See Intel,

542 U.S. at 264–65 (noting that courts should consider those

factors in ruling on a § 1782 application). The court rejected,

with some discussion, FibroGen’s argument that the

application was overlyburdensome and not narrowlytailored. 

See id. at 265. It recognized the highly confidential nature of
10 AKEBIA THERAPEUTICS V. FIBROGEN

the information that Akebia seeks to obtain and entered a

restrictive protective order to guard against disclosure.

The district court was not required to address explicitly

every factor or argument, nor was it required to issue a

written order. See United States v. Sealed 1, 235 F.3d 1200,

1206 (9th Cir. 2000) (noting the broad discretion afforded the

district courts under § 1782 and the lack of specific guidance

with which to exercise that discretion). The district court

properly exercised its discretion in granting the application.

In summary, the district court permissibly granted

Akebia’s application for discovery in aid of a foreign

proceeding. Both the European Patent Office and the

Japanese Patent Office are “tribunals” within the meaning of

28 U.S.C. § 1782, and Akebia, as the party challenging the

validity of the foreign patents, is an “interested person” that

is allowed to seek judicial assistance.

AFFIRMED.

WATFORD, Circuit Judge, concurring:

I join the opinion in full, except for the paragraph

addressing Article III standing.