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Affy, OGT Meet in UK Appeals Court; Hearing Likely to Affect US Decision

PARIS, Oct 23 - Affymetrix and Oxford Gene Technology faced off in the British Court of Appeals last week in a hearing that will likely set the stage for another t ête-à-tête in a US court scheduled for early November.

In the British hearing Affymetrix appealed to the court to overturn a previous ruling that Affymetrix had not gained a license to patented nucleic acid hybridization technology developed by Ed Southern and owned by OGT via its purchase of Beckman Coulter’s microarray development program.

The court originally ruled that Affymetrix had not acquired a license to use the technology for commercial purposes since Beckman had access to it for research purposes only.

After three and a half days of arguments, OGT said it was confident the court would uphold the original ruling.

“We came out of it feeling confident about the [original] decision,” said Andy Millar, OGT’s CEO.

Affymetrix did not return calls seeking comment.

Before the start of the appeal, OGT’s attorney Chris Shelley, said the appeal is unlikely to be successful for Affymetrix because the appellate court will have difficulty finding errors of law. The April decision was largely based on the judge’s opinion of the validity of evidence presented to him, Shelley said.

Millar said he did not know when the court would hand down its decision, but added that he expected a ruling before the start of the patent infringement case, which will be tried in the US District Court for the District of Delaware. That trial is scheduled to begin on November 6.

If the UK appeal is denied, the US court is likely to abide by the British decision at the outset, robbing Affymetrix of its most promising defense in the infringement case, according to Millar.

Without the Beckman license Affymetrix’s best chance of success will be to prove that Southern’s patents are invalid due to prior art.

If Affymetrix successfully invalidates the patent it will be a shock to the scientific community since Southern is widely regarded as the father of nucleic acid hybridization techniques such as those widely utilized by microarrays.

The November 6 jury trial will cover several issues, such as whether Affymetrix is infringing on Ed Southern’s patents, whether that infringement was willful or not, and whether OGT’s patents are valid.

OGT is seeking $300 million in damages, an injunction, and/or royalties.

If OGT establishes that Affymetrix is infringing on its patents, the court could grant an injunction that would prevent the company from producing more chips.

But according to Hollie Baker, vice chairman of intellectual property at Hale & Dorr, Affymetrix would be able to buy its way out of an injunction by paying royalties to OGT until the case gets reviewed by an appellate court.

OGT said that it planned to continue pressing Affymetrix until the chipmaker agrees to a deal.

“The key for us is the final result of the infringement action,” Millar said. “The more pressure we can get onto Affy’s board, the more likely we can get Affy to settle.” 

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