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Andover Healthcare, Inc. v. 3M Co.

United States Court of Appeals, Eighth Circuit

March 31, 2016

Andover Healthcare, Inc., Petitioner - Appellant,
v.
3M Company, Respondent - Appellee

         Submitted October 22, 2015

          Appeal from United States District Court for the District of Minnesota - Minneapolis.

         For Andover Healthcare, Inc., Petitioner - Appellant: Scott Benson, BRIOL & ASSOCIATES, Minneapolis, MN; David Brafman, Patricia M. Carlson, AKERMAN, LLP, West Palm Beach, FL.

         For 3M Company, Respondent - Appellee: Felicia Boyd, BARNES & THORNBURG, Minneapolis, MN; William Woodford, FISH & RICHARDSON, Minneapolis, MN.

         Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

          OPINION

Page 622

          COLLOTON, Circuit Judge.

         Andover Healthcare, Inc., appeals an order of the district court[1] denying Andover's petition under 28 U.S.C. § 1782 for discovery to be used in a patent-infringement suit in Germany. We conclude that the district court did not abuse its discretion, and we therefore affirm the order.

         I.

         Andover Healthcare, Inc., and 3M Company both make cohesive, latex-free bandages. Andover holds patents on its bandages in both the United States and Europe. In 2013, Andover filed a patent-infringement suit in the District of Delaware, alleging that 3M had infringed Andover's patent with its line of Coban bandages. Andover also sued 3M in Germany, asserting that 3M violated Andover's related European patent. This appeal concerns an effort to discover information for use in the German suit.

         Claim one of Andover's European patent describes " a cohesive product comprising . . . an inherently crystalline elastomer and at least one tackifying agent in an amount effective to disrupt the crystalline structure of the elastomer and maintain the elastomer in a partial polycrystalline state." In support of its defense [118 U.S.P.Q.2d 1261] in the German case, 3M submitted an expert report stating that 3M's raw " elastomer materials are not present in a crystalline . . . state." The report further observed that " [s]ince no crystallinity could be detected in the elastomer right from the beginning, it can therefore not be disrupted by specifically adding tackifiers." 3M argued before the German court that because its polychloroprene elastomer material is not crystalline or maintained in a partial polycrystalline state, its products did not infringe Andover's European patent.

         Andover believes that 3M's test results cannot be correct and seeks to conduct its own testing on 3M's polychloroprene and 3M's polychloroprene and tackifying agent mixture. 3M has refused, however, to reveal to Andover its specific type of polychloroprene or its formula for making the bandages. 3M asserts that this information implicates highly sensitive trade secrets.

         3M did disclose the disputed information, under a protective order, in the Delaware infringement suit. Andover first sought permission from the Delaware court to use the information in the parallel German proceeding. The Delaware court denied Andover's request, citing the sensitivity of the information and the availability of other mechanisms in Germany and in the United States to obtain the information. Andover then sought the same discovery from the German court, but the German court has not yet ruled on the request. While pursuing these discovery requests, Andover also conducted testing on 3M's commercially available ...


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