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Affymetrix Seen Making Strong Arguments in OGT Patent Trial

NEW YORK, Nov 8 – In the opening round of the US patent infringement lawsuit brought by Oxford Gene Technologies against Affymetrix for its microarray technologies, Affy mounted a strong and convincing defense, according to a report by Wall Street analysts attending the trial.

“We believe Affymetrix’s defense provided powerful opening remarks that laid out Affy’s two-pronged strategy against OGT,” Robertson Stephens analyst Mike King wrote in a report issued Tuesday.  

In the two-pronged strategy, Affy outlined clear differences between its microarray methodology and those covered by OGT’s “’637” patent, said King. “Second, Affy offered compelling evidence it did not willfully infringe on the ‘637 patent by indicating its dealings with OGT following good faith and decent business laws,” King added.

This jury trial, which began Monday in the US District Court for the District of Delaware, is the latest stage in a pair of patent infringement and licensing lawsuits that OGT filed against Affy earlier this year in the UK and the US.

In this stage of the lawsuit, OGT is alleging that Affy willfully infringed on its patents – in other words, that it knew its technology overlapped with OGT’s patents and went ahead with manufacturing the technology in defiance of this knowledge. OGT is seeking $120 million in damages from Affymetrix.

The trial follows closely on the heels of a UK appellate court ruling last Thursday that Affymetrix had a license to OGT's ‘637 patent in the UK, which covers microarrays developed in the late 1980s by Oxford University scientist and OGT founder Ed Southern.

Although the UK decision is not binding under US law, the American Judge has said he would abide by it in deeming that Affymetrix had license to the Southern Patent as of June 1, 1999, sources close to the company said.  

But the jury still has to rule on whether Affy willfully infringed on this patent before this date.

If Affy prevails in this suit, it should be able to recoup revenues for ten percent of its sales, which it has been accruing for royalty payments in the event that it is ordered to pay OGT, the report said.

In opening arguments, Affy pointed out that its microarrays use photolithography and silicon wafers, whereas the OGT microarray uses segregated cells and non-photolithographic processes.

Affy also argued that its GeneChips, unlike OGT’s are reproducible numerous times, whereas a particular Southern microarray cannot be precisely reproduced.

Finally, Affy said its microarrays are of a unique high-density variety that allow high throughput analysis, and that their format allows researchers to communicate their results to colleagues around the world while Southern’s cannot.

Affy also pointed out numerous statements that Southern had made, both in print and verbally, indicating differences between his microarrays and Affy’s arrays.

In the first two days of the trial Southern and Affymetrix CEO Steve Foder both took the witness stand to explain why their microarray technologies did or did not overlap. Sources close to Affymetrix said Southern’s assertions did not hold up well in cross-examination, but this could not be confirmed by outside observers.

OGT has not returned several calls seeking comment.

Closing arguments for the trial are expected to be given Thursday, at which point the case will go to the jury for a verdict.  

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