The case of the day is AIS GmbH Aachen Innovative Solutions v. Thoratec LLC (9th Cir. 2019). AIS and Abiomed Europe GmbH sought leave to take discovery under § 1782 in aid of a patent infringement case Abiomed had brought against Thoratec in Germany involving heart pumps. A magistrate judge granted the application and ordered Thoratec to produce three samples of its heart pump. Thoratec objected to the magistrate judge’s decision, but the date for compliance came before the district judge had made a decision on the objection, so Thoratec also petitioned for a writ of mandamus, and the Ninth Circuit issued a temporary stay. The district judge then overruled the objection, and Thratec appealed. In today’s decision, the court affirmed.

The decision itself is routine: because the lower court reasonably considered the Intel factors, and because review is for abuse of discretion only, the appeal failed. But there are a couple of points of interest:

1. The applicant was able to obtain samples of the allegedly infringing product. Section 1782 is usually used to obtain documents, sometimes to obtain testimony. In commercial cases, it is rarely used to obtain things. But the statutory text itself makes it clear that this form of discovery is possible. I believe that inspections are also possible under the statute. These forms of discovery are particularly interesting in, for example, biosimilar cases (where the complex manufacturing processes may be difficult to understand without an inspection), and in patent litigation more generally.
2. The court indicated that it wanted to decide whether the magistrate judge’s decision was a dispositive decision for purposes of FRCP 72, even though it ended up holding that that issue wasn’t properly before it. This is a recurring issue in Section 1782 practice: what is the standard of review for a district judge’s review of a magistrate judge’s decision? I expect that at some point the Ninth Circuit will reach it.