Intellectual Property News and Reports

Eli Lilly and Company and its foreign subsidiaries (collectively, “Eli Lilly”) applied to the district court under 28 U.S.C § 1782 for an order requiring Novartis Pharma AG to provide discovery for use in ongoing patent litigation between the two companies in various European countries. Section 1782(a) authorizes a district court, in its discretion, to order a person who “resides or is found” in its district to provide discovery for use in a foreign tribunal.

After Novartis intervened and objected to Eli Lilly’s application, the district court entered an order denying the application, concluding (1) that Novartis was not “found” in the Eastern District of Virginia because it lacked a physical presence there; (2) that, assuming “found” was coextensive with the constitutional limits of personal jurisdiction, as Eli Lilly argued, Novartis was still not “found” in the district; and (3) that, in any event, discretionary factors identified by the Supreme Court weighed against granting Eli Lilly’s application in the circumstances of this case.

On Eli Lilly’s appeal challenging each ground given by the court, we affirm the district court’s order based on the first and third grounds and therefore find it unnecessary to address the second.

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