The case of the day is Princeton Digital Image Corp. v. Konami Digital Entertainment Inc. (D. Del. 2016). The case was a patent infringement action against Konami, the developer of the Dance Dance Revolution video game . Princeton sought an order requiring Konami, the US subsidiary of Konami Holdings Corp., to produce documents in the possession of its sister subsidiary, Konami Japan, on the theory that the documents were within the US subsidiary’s control. (The ordinary test for what is discoverable, under FRCP 34, is that the documents must be in the responding party’s “possession, custody, or control”).
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The case of the day is SiOnyx LLC v. Hamamatsu Photonics K.K. (D. Mass. 2016). SiOnyx and the President and Fellows of Harvard College brought an action against Hamamatsu Photonics, a Japanese corporation, and its American subsidiary, Hamamatsu Corp., and others. The plaintiffs effected service on Hamamatsu Corp., but they conceded that they had not directly effected service on Hamamatsu Photonics. Instead, they asserted that service on the subsidiary was effective as service on the parent, because the subsidiary was the parent’s “managing or general agent,” and thus the service was effective under Mass. R. Civ. P. 4(d)(2). It’s unclear to me, by the way, why the parties focused on Mass. R. Civ. P. 4 instead of Fed. R. Civ. P. 4(h)(1)(B), which also has a managing or general agent provision. The Massachusetts rule is incorporated by reference into the federal only if the service is to be made in the United States; but if the service is to be made in the United States, why not rely instead, or in addition, in the federal rule for domestic service? Perhaps there is some difference in how the federal cases and the Massachusetts cases define a managing or general agent, but if so, I don’t know offhand what it is. In any event, the plaintiffs also sought a preliminary injunction against the Japanese defendant.
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The case of the day is Akebia Therapeutics, Inc. v. Fibrogen, Inc. (9th Cir. 2015). Fibrogen, a San Francisco biotech company, owns European and Japanese patents on the use of certain chemical compounds to treat anemia. Akeiba, a competitor, brought opposition proceedings in the European Patent Office and the Japanese Patent Office, asserting that the patents are invalid. Akeiba brought an application under § 1782 seeking leave to serve subpoenas for documents and testimony on Fibrogen. The judge granted the application ex parte, and Fibrogen appealed.
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