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09-286

09-286

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Published by: YCSTBlog on Jun 17, 2010
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF DELAWARE
PRONOVA BIOPHARMA NORGE AS,))Plaintiffs,))v.)Civil Action No. 09-286-SLR-MPT)TEVA PHARMACEUTICALS USA, INC.))Defendants.)PRONOVA BIOPHARMA NORGE AS,))Plaintiffs,))v.)Civil Action No. 09-304-SLR-MPT)APOTEX CORP. and,)APOTEX INC.))Defendants.)PRONOVA BIOPHARMA NORGE AS,))Plaintiffs,))v.)Civil Action No. 09-305-SLR-MPT)PAR PHARMACEUTICAL, INC. and,)PAR PHARMACEUTICAL )COMPANIES INC.))Defendants.)
MEMORANDUM ORDERI. BACKGROUND
In this patent infringement case, defendants Apotex Inc. and Apotex Corp(“Apotex”), Par Pharmaceutical, Inc. and Par Pharmaceutical Companies, Inc. (“Par”),
 
and Teva Pharmaceuticals USA, Inc. (“Teva”) move for issuance of Letters of Requestfor international judicial assistance pursuant to the Hague Evidence Convention.Plaintiff Pronova BioPharma Norge AS (“Pronova”) claims that defendants’ AbbreviatedNew Drug Applications (“ANDA”) for a generic version of GlaxoSmithKline’s LOVAZA® pharmaceutical product infringe its patents, specifically U.S. Patent Nos. 5,502,077 (“the‘077 patent”) and 5,656,667 (“the ‘667 patent”). Defendants maintain that their ANDAsdo not infringe Pronova’s patents and that the ‘077 and ‘667 patents are invalid andunenforceable. The defendants seek to obtain discovery from the inventors of the ‘077and ‘667 patents and from several individuals who filed declarations in support ofpatentability during the prosecutions of those two patents. These inventors anddeclarants from whom discovery is presently sought reside in either Norway or Sweden.
II. LEGAL STANDARD
“The Hague Evidence Convention serves as an alternative or ‘permissive’ routeto the federal Rules of Civil Procedure for the taking of evidence abroad from litigantsand third parties alike.”
1
“The Convention allows judicial authorities in one signatorycountry to obtain evidence located in another signatory country ‘for use in judicialproceedings, commenced or contemplated.’”
2
The United States, Sweden, and Norwayare contracting states under the Hague Evidence Convention. Letters of Request areone method of taking evidence pursuant to the Convention.
3
Upon receipt of a Letter of
1
 
Tulip Computers Int’l B.V. v. Dell Computer Corp.
, 254 F. Supp. 2d 469, 472 (D. Del. 2003)(citing
Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa 
, 482 U.S. 522 (1987)).
2
 
Id.
(quoting Hague Evidence Convention, Art. 1)
3
There are three:(1) by a Letter of Request or “letter rogatory” from a U.S. judicial authority to the competentauthority in the foreign state . . . , (2) by an American or foreign diplomatic or consular officer
2
 
Request, which must provide specific information regarding the lawsuit and theinformation sought to be discovered, the signatory state “‘shall [then] apply theappropriate measure of compulsion’ as is customary ‘for the execution of orders issuedby the authorities of its own country.’”
4
Individuals to whom a Letter of Request isdirected have the right to refuse to give evidence to the extent they are protected by aprivilege under either the law of the State of execution or the State of origin.
5
DISCUSSION
“‘A party which seeks the application of the Hague [Evidence] Conventionprocedures rather than the Federal Rules [of Civil Procedure] bears the burden ofpersuading the trial court[]’ of the necessity of proceeding pursuant to the HagueEvidence Convention.”
6
“That burden is not great, however, since the ‘Conventionprocedures are available whenever they will facilitate the gathering of evidence by themeans authorized in the Convention.’”
7
In this case, both parties agree that Letters ofRequest should be used.
8
The parties’ briefing makes clear that the inventors anddeclarants subject to the defendants’ motion are not parties to the lawsuit, have notvoluntarily subjected themselves to discovery, are citizens of either Norway or Sweden,and are not otherwise subject to the jurisdiction of this court. Under these
or agent after permission is obtained from the foreign state, and (3) by a privatecommissioner duly appointed by the foreign state.
Tulip Computers Int’l B.V.
, 254 F. Supp 2d at 472 (citation omitted).
4
 
Id.
(citing Hague Evidence Convention, Art. 3, 10).
5
 
Id.
(citing Hague Evidence Convention, Art. 11).
6
 
Id.
at 474 (quoting
Valois of Am., Inc. v. Risdon Corp.
, 183 F.R.D. 344, 346 (D. Conn. 1997))(alterations in original).
7
 
Id.
(quoting
Societe Nationale Industrielle Aerospatiale 
, 482 U.S. at 541).
8
 
See 
C.A. No. 09-286, D.I. 43 at 5 (“Pronova does not oppose the use of the Hague Conventionas a means for seeking information from the listed individuals.”); C.A. No. 09-304, D.I. 55 at 5 (same); C.A.No. 09-305, D.I. 42 at 5 (same).
3

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