Gilead Sciences, Inc. v. Sigmapharm Laboratories, LLC

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GILEAD SCIENCES, INC.,
Plaintiff-Appellee,
v.
SIGMAPHARM LABORATORIES, LLC,
Defendant-Appellant.
______________________
2014-1456
______________________
Appeal from the United States District Court for the
District of New Jersey in No. 2:10-cv-04931-SDW-MCA,
Judge Susan D. Wigenton.
______________________
ORDER
Federal Circuit Rule 28(d) requires the filing of briefs
accessible to the public. Rule 28(d)(1) only permits par-
ties to delete material in publicly filed briefs if such
material is “subject to confidentiality mandated by statute
or to a judicial or administrative protective order.”
Federal Rule of Civil Procedure 26(c)(1) requires that
protective orders restricting the disclosure of information
may only be issued for “good cause.” Fed. R. Civ. P.
26(c)(1). Federal Rule of Appellate Procedure 46(c) per-
mits this court “to discipline an attorney who practices
before it . . . for failure to comply with any court rule.”
2 GILEAD SCIENCES, INC. v. SIGMAPHARM LABS
Fed. R. App. P. 46(c). This court has explicitly recognized
that, “under Rule 46, it ‘has authority to impose sanctions
for violations of the Federal Rules of Appellate Procedure
or of its own rules.’” In re Violation of Rule 28(d), 635
F.3d 1352, 1360 (Fed. Cir. 2011) (quoting In re Violation
of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir. 2004)).
The briefs submitted by Defendant-Appellant contain
extensive confidentiality markings, including portions of
the Table of Contents, Statement of the Issues, Summary
of the Argument, and Argument sections. A number of
the portions marked confidential appear to consist of legal
arguments. For instance, the following passage was
marked confidential, in its entirety:
Gilead knew, or should have known, that the ’340
patent was invalid at the time it filed the applica-
tion for the ’340 patent. Even more so, Gilead
knew, or should have known, that the ’340 patent
was invalid the day it filed suit against Sigma-
pharm for infringement of the ’340 patent. By as-
serting a patent that it knew, or should have
known, to be invalid, Gilead willingly filed a base-
less lawsuit against Sigmapharm, improperly
prevented Sigmapharm from going to market with
its ANDA Product with respect to the ’340 patent,
and needlessly forced Sigmapharm to spend mil-
lions of dollars to defend itself against what could
most aptly be described as sham litigation.
Defendant-Appellant's Br. 28. We have specifically held
that marking legal arguments as confidential is subject to
sanction, because “[n]o good faith reading of our rule
could support [a party’s] marking of its legal arguments
as confidential.” 635 F.3d at 1360. It thus appears that
Defendant-Appellant marked material as confidential in
violation of the rules of this court.
GILEAD SCIENCES, INC.SIGMAPHARM LABS 3
Accordingly,
IT IS ORDERED THAT:
By November 26, 2014, Defendant-Appellant is
ordered to show cause why this court should not impose
sanctions for the violation of Federal Circuit Rule 28(d)
due to the improper confidentiality markings.
FOR THE COURT
November 19, 2014 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
cc: John E. Rosenquist
Marc R. Wezowski
K. Lee Marshall
Robert L. Stolebarger
Ameer Gado
Anthony Friedman
Nicholas M. Cannella
Timothy J. Kelly
Christopher E. Loh