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Affymetrix Asks Judge to Overlook Jury Verdict in OGT Case

PARIS, Dec 8 - Affymetrix recently filed motions in a Delaware court asking that a judge overlook a jury’s recent verdict and decide it did not infringe on Oxford Genome Technologies’ patents, a move that will likely extend the companies’ ongoing multinational legal battle.

In November, a jury ruled that Affymetrix did not willfully or literally infringe on OGT’s microarray patents, but that it did infringe under a special rule called the “doctrine of equivalents,” which refers to the essential likeness between two products.

Affymetrix is now asking that the judge in effect dismiss the ruling. One of the motions filed by Affymetrix argues that, “because the jury didn’t see any prior art – the judge excluded prior art – they may not have really had the information they needed,” Anne Bowdidge, director of investor relations at Affymetrix, told GenomeWeb.

Prior art refers to any invention that exists prior to the filing of a patent that would be similar enough as to render the patent invalid.  

The judge has scheduled the due date for the opening briefs on the motions for January 15. Opposition briefs are due on February 15 and reply briefs are due on March 8. Oral arguments will be held in late March.

It is now unclear when or if the original trial will continue. Following the jury’s November ruling, the case was expected to move into its second phase to consider the validity of OGT’s patent. If the patent was held to be valid, the case would have entered its third and final stage – the determining of damages.

In November a UK appeal court vindicated Affymetrix on a separate issue, ruling that the microarray maker had in fact received a license to OGT’s technologies. OGT said at the time it intended to petition the House of Lords for an appeal.

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