By Report and Recommendation entered in Fuisz Pharma LLC v. Theranos, Inc., Civil Action No. 11-1061-SLR-CJB (D.Del., May 18, 2012), the Honorable Christopher J. Burke recommends that the Court grant the motion of defendant Theranos to dismiss, stay or transfer in part by transferring the case to the United States District Court for the Northern District of California. Specifically, Judge Burke recommends that the Court find that the first-filed rule applies, that the action filed by Theranos and its founder on October 26, 2011 against Fuisz Pharma and individual members of the Fuisz family in the United States District Court for the Northern District of California be considered the first-filed action, and that the patent infringement action filed by Fuisz Pharma on November 1, 2011 in the United States District Court for the District of Delaware be transferred to the Northern District of California. See id. at 8-35.

Of significant distinction in this matter appears to be the fact that the previously filed California action includes inventorship claims asserted under the Patent Act by Theranos alleging that the Fuisz defendants allegedly misappropriated Theranos’ and its founder’s confidential information and used that information to obtain the patent-in-suit in both actions, U.S. Patent No. 7,824,612 (the “’612 patent”), without crediting Theranos and its founder as the true inventors.  See id. at 2-3. 

A complete copy of the Report and Recommendation is attached.