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California Court Tosses Gen-Probe Complaint Against Digene; Arbitration on HPVs Open

NEW YORK (GenomeWeb News) — A California court has dismissed a complaint Gen-Probe filed against Digene last year over a 2005 agreement between Gen-Probe and Roche, Digene said today.
 
Gen-Probe filed the complaint in a San Diego County court in December 2006 to counter claims by Digene that its agreement concerning human papillomavirus-related materials with Roche was not legal because Gen-Probe was not part of a pre-existing cross-license agreement between Digene and Roche.
 
In its decision, the court also gave Gen-Probe “no option to re-file” the complaint or amend it, Digene said.
 
Digene claims that Gen-Probe was not a party to the 1990 cross-license agreement between Roche’s predecessor, called Institut Pasteur, and Digene’s predecessor, Life Technologies, that would grant it access to the HPV-related technology, and turned to that argument when it filed to have Gen-Probe’s claims dismissed from the San Diego Court in March.  
 
Digene has one HPV test that has received US Food and Drug Administration approval, and Gen-Probe is in the process of developing one.
 
Digene said the court decided that there is “no actual controversy between Digene and Gen-Probe.”
 
A separate ongoing proceeding promises to keep the HPV matter in play for now, however, as a New York-based arbitration panel last week agreed to allow Gen-Probe to join a proceeding between Digene and Roche.  
 
Last week, Digene said it filed for the arbitration in December 2006 claiming that Roche had transferred to Gen-Probe human papillomavirus products under “the guise of a supply and purchase agreement.”
 
Michael Watts, Gen-Probe’s senior director of investor relations and corporate communications, told GenomeWeb Daily News today that the company filed the proceeding in December 2006 as “a parallel proceeding in case we weren’t included in the arbitration proceedings with Digene and Roche.”
 
“That’s really the dispute that we wanted to be a part of,” Watts added, saying that Digene requested that Gen-Probe not be included in the arbitration.
 
The San Diego County case “was for a summary judgment that our agreement in Roche was in fact valid,” Watts said.
  
Digene CEO Daryl Faulkner said in a statement his company is “very pleased with this result, and with the termination of this litigation.”

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