Extradition

• Pages: 55-58

55

international law update Volume 21, April–June 2015

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Trademark Oce (“USPTO”). e Court rejects

FibroGen’s argument that Congressional institution

of post-grant review processes in the AIA repealed,

by implication, any application of § 1782 to

foreign patent oce proceedings. Again citing to

Supreme Court authority, the Ninth Circuit nds

no “irreconcilable” conict between the two laws

that would justify a repeal by implication.

“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

aects domestic proceedings in the USPTO.” [Slip

op. 4]

“e 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.

e AIA applies only to proceedings conducted in

the United States, making no mention of foreign

proceedings.” [Slip op. 4]

“We see no apparent conict, and certainly not

an ‘irreconcilable’ one, between § 1782 and the

AIA. … We therefore hesitate to read into the AIA

any intent to impliedly repeal, or limit the scope

of, an unrelated statutory provision. …e district

court properly applied § 1782 to the foreign patent

oce proceedings underlying this case.” [Slip op. 4]

e Court also rejects FibroGen’s argument

that the district court gave “short shrift” to the non-

exclusive factors set out by the Supreme Court in its

Intel opinion.

“e 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 aorded the district

courts under § 1782 and the lack of specic

guidance with which to exercise that discretion).”

[Slip op. 5]

“In summary, the district court permissibly

granted Akebia’s application for discovery in aid

of a foreign proceeding. Both the European Patent

Oce and the Japanese Patent Oce 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.” [Slip op. 5]

e Court arms the district court’s decision

to grant Akebia’s application for discovery in aid of

a foreign proceeding.

citation: Akebia erapeutics, Inc. v. FibroGen,

Inc., 15-15274 (9th Cir. July 16, 2015).

EXTRADITION

In case of extradition of drug trafficker

from Colombia, Second Circuit finds

that Defendant who received 648

month prison sentence lacks standing

to enforce sentencing agreement

between Colombian and U.S. officials

that provided Defendant would not be

imprisoned for life

Since the early 1990s, Yesid Rios Suarez

(“Suarez”) operated a large-scale drug tracking

organization out of Colombia and Venezuela.

In September 2010, while in Venezuela, he

was convicted in absentia in Colombia of drug

manufacturing and tracking. One year later

Suarez was extradited from Venezuela to Colombia.

Suarez was also charged in the United States

with conspiracy to manufacture and import ve

kilograms or more of cocaine into the United States

in violation of 21 U.S.C. § 963. In November 2011,

the United States transmitted a formal request to

Colombia for the arrest and extradition of Suarez

to face charges.

In October 2012, the Colombian Ministry

of Justice issued a resolution ordering Suarez’s