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In re Application of Gilead Pharmasset LLC

United States District Court, D. Delaware

April 14, 2015



GREGORY M. SLEET, District Judge.


Before the court is an application by Petitioner Gilead Pharmasset LLC ("Gilead") for an order under 28 U.S.C § 1782 granting Gilead leave to obtain discovery from Respondent AbbVie Inc. ("AbbVie") for use in foreign litigation. (D.I. 1.) After careful consideration, the court will deny Gilead's application.


This application arises out of Gilead's pursuit of worldwide litigation regarding its alleged invention of an innovative treatment for Hepatitis C Virus ("HCV").[1] The particular invention in question is a therapy using the drugs sofosbuvir (PSI-7977) and ledipasvir (GS-5885) in combination, to treat HCV patients with an interferon-free regimen, with and without ribavirin, in as short as twelve weeks. (Civil Action No. 13-2034-GMS, D.I. 31, ¶ 16.) The key component of using the drugs in combination is ledipasvir, which was originally developed by Gilead's predecessor, Pharmasset, Inc. ("Pharmasset"). ( Id., ¶ 45.)

Beginning in February 2009, AbbVie's predecessor, Abbott Laboratories Inc., entered into negotiations with Pharmasset to purchase the company-including the rights to ledipasvir-but the companies ultimately did not come to an agreement. ( Id., ¶¶ 54-71.) During that time Gilead alleges AbbVie was privy to Pharmasset's confidential information which included data showing the potential efficacy ofledipasvir. (Id. ) In January of 2012, Gilead purchased Pharmasset, and became the rightful owner of ledipasvir. ( Id., ¶ 9.) In the time since then, Gilead has begun to market a combination of the drugs, in single tablet form, throughout the United States and Europe under the name HARVONI®. (D.I. 1 at 1-2.)

This worldwide litigation arises as a result of numerous patent applications filed by AbbVie in Europe and the United States claiming various aspects of a treatment for HCV using the combination of sofosbuvir and ledipasvir. (Id. at 2.) As a result, Gilead has initiated litigation in the United States and various European jurisdictions seeking to establish entitlement of AbbVie's claimed invention. (Id. ) In furtherance of Gilead's litigation in Germany, Sweden, Austria, and Switzerland ("Entitlement Proceedings"), Gilead has filed this § 1782 application in order to obtain discovery in the United States for use in those tribunals. (Id. )


Under 28 U.S.C. § 1782, a federal district court "may order" a person "resid[ing]" or "found" in the district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal... upon the application of any interested person." Section 1782 provides "for assistance in obtaining documentary and other tangible evidence as well as testimony." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 248 (2004).

The court must assess whether the statutory requirements of § 1782 are satisfied; and, if so, determine whether the factors discussed in Intel weigh in favor of granting the petitioner's application. See Pinchuk v. Chemstar Products LLC, No. 13-mc-306-RGA, 2014 WL 2990416, at *1-2 (D. Del. June 26, 2014).

The three statutory requirements under § 1782 dictate that the party from whom discovery is sought must reside or be found in the district; the discovery must be for use in a proceeding before a foreign tribunal; and the application must be made by an interested person. Id.; Via Vadis Controlling GmbHv. Skype, Inc., No. 12-mc-193-RGA, 2013 WL 646236, at *1 (D. Del. Feb. 21, 2013).

If the statutory requirements are met, the court has discretion to grant the moving party's § 1782 application. Intel, 542 U.S. at 264-65 ("[A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so.") (citation omitted). The factors that inform this discretion are: (1) whether the person from whom discovery is sought is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the foreign proceedings, and the receptivity of the foreign government to federal judicial assistance; (3) whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies; and (4) whether the request is unduly intrusive or burdensome. Via Vadis Controlling, 2013 WL 646236, at *1. The court should remain mindful of the twin aims of§ 1782: (1) providing efficient assistance to participants in international litigation, and (2) encouraging foreign countries-by example-to provide similar assistance to our courts. See id. (citing Intel, 542 U.S. at 252).


A. Statutory ...

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