Akebia Therapeutics, Inc. v. FibroGen, Inc., 2021 FC 1179

Justice Barnes - 2021-11-04

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This is a motion brought by the Plaintiff, Akebia, asking the Court to vacate the Defendant’s designation of confidentiality over two fact witness statements delivered to Akebia in the course of underlying patent impeachment litigation. ... Notwithstanding the intervening consent discontinuance of the underlying action, Akebia seeks to have Fibrogen’s confidentiality designations lifted by the Court except to the extent that Fibrogen’s commercial interests could be compromised. Akebia has acknowledged that its motivation for this motion is to potentially use the “non-confidential” productions in closely related litigation between the parties in the United States. ... By attorning to this Court’s jurisdiction to resolve these confidentiality issues, Fibrogen opened up the possibility that some or all of the productions would enter the public domain. It cannot now seek the protection of the implied undertaking rule to prevent that result. If the parties did not want to assume this risk, they could have stipulated that any confidentiality adjudication, ex post facto or otherwise, would proceed by private arbitration and not in this Court. ... In conclusion, I agree with Akebia that only commercially and scientifically sensitive information in the productions can be the subject of a bona fide confidentiality designation.

Decision relates to:


Canadian Intellectual Property