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Applera Seeks Preliminary Injunction Against Stratagene's Thermal Cycler Products in EU

This story originally appeared in Biocommerce Week, a newsletter that has been discontinued.
 
Applied Biosystems’ parent company, Applera, has filed a patent infringement suit against Stratagene in Europe seeking an injunction on certain of Stratagene’s thermal cycler products.
 
The European suit comes less than a year after the European Patent Office reinstated Applera’s patent covering its real-time thermal cycler technology. It also was filed in advance of jury selection, scheduled for July, in the ongoing US litigation between the companies.
 
The European suit was disclosed by Stratagene in an 8-K filing this week with the US Securities and Exchange Commission. According to Stratagene, on May 23 it received a writ of summons filed by Applera in the District of The Hague in the Netherlands to appear at a preliminary injunction hearing on July 4.
 
On May 25, Stratagene received a separate writ of summons filed by Applera in the Tribunal de Grande Instance of Paris to appoint a barrister from the Paris bar by Aug. 9.
 
The writs allege that certain of Stratagene’s products infringe Applera’s European Union Patent No. 0872562 B1. Among those allegedly infringing products are Stratagene’s Mx3000P, MX3005P, and Mx4000P instruments and related reagents.
 
Applera is seeking a preliminary injunction that would prevent Stratagene from selling the products named in the suit in the Netherlands, France, and certain other European nations.
 
Applera could not be reached for comment by press time, but Stratagene said in its SEC filing that it believes the writs are “without merit” and it “intends to vigorously defend against these actions.”
 
The European litigation comes as jury selection is near to begin in a patent infringement suit brought by Applera in November 2004 against Bio-Rad Laboratories, MJ Research, and Stratagene (see BioCommerce Week 11/18/2004). That initial suit was filed just hours after Applera had received US Patent No. 6,814,934, entitled, "Instrument for monitoring nucleic acid amplification."
 
In September 2005, a federal court granted an injunction preventing Bio-Rad, which acquired MJ in August 2004 for $32 million, from making and selling thermal cycler products that infringed Applera’s patents (see BioCommerce Week 9/8/2005). Bio-Rad reached a settlement with Applera and partner Roche Molecular Systems in February 2006, which enabled Bio-Rad to resume selling its thermal cycler products in the US. It also took a license to Applera’s patents in Europe and Japan (see BioCommerce Week 2/15/2006).
 
Leverage for Applera?
 
Though Stratagene officials have said frequently over the past two years that the firm wishes to reach a settlement with Applera — and court documents have shown that the firms had been engaged in settlement talks — such a deal has never been reached.
 
Applera’s case against Stratagene could have gotten stronger with the EPO’s decision last July to fully reinstate Applera’s thermal cycler technology patent (see BioCommerce Week 7/19/2006). That same week, Beckman Coulter settled a suit with Applera regarding the patents, and licensed Roche’s PCR-related patents covering diagnostic applications.
 
The reinstatement of the European patent and the suit filed against Stratagene last week could potentially provide Applera with leverage in any settlement talks it has with Stratagene, or its pending acquirer Agilent.
 

The reinstatement of the European patent and the suit filed against Stratagene last week could potentially provide Applera with leverage in any settlement talks it has with Stratagene, or its pending acquirer Agilent.

Stratagene is in the process of being acquired by Agilent in a $246 million deal announced in early April (see BioCommerce Week 4/11/2007). It is unknown whether this latest legal battle will test Agilent’s resolve in completing the deal, but based on recent comments from an Agilent executive it seems unlikely.
 
During Agilent’s second-quarter conference call earlier this month, President and CEO Bill Sullivan said he would not comment on any of Stratagene’s legal issues. “We are obviously confident to get these issues resolved and move forward,” he said.
 
But the Applera litigation is just one of several legal disputes hanging over Stratagene.
 
The firm recently agreed to pay Third Wave Technologies $10.75 million to settle a patent case, which had earlier been decided in Third Wave’s favor by a Wisconsin court (see BioCommerce Week 1/31/2007).
 
Stratagene also was ordered by a Texas court to pay Invitrogen $16.2 million for infringing an Invitrogen patent covering a process for developing competent cell products (see BioCommerce Week 11/1/2006). The firm has since appealed the case.
 
However, the US Patent and Trademark Office recently notified Stratagene that its patent covering polymerase blends will be reinstated with retroactive effect. The patent is at the center of a suit Stratagene filed against Invitrogen and could provide some leverage in negotiating a possible settlement with Invitrogen of this litigation and the other case decided in Invitrogen’s favor.
 
Stratagene also recently served Bio-Rad with a suit alleging that the firm and its MJ Research and MJ Geneworks units are infringing four of Stratagene’s US patents: Nos. 6,054,263; 5,779,981; 5,288,647; and 5,395,591 (see BioCommerce Week 11/29/2006). The patents are related to thermal cycler technology and methods and instruments for irradiating biological specimens.

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