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CLARIFICATION: California Judge Dismisses Affy Claims Against Incyte

This update serves to clarify that Affymetrix does not make cDNA arrays, as we erroneously reported on Monday. Incyte manufactures such arrays. Affy makes synthesized arrays for oligonucleotides that allow scientists to manufacture their own cDNA arrays.

NEW YORK, Oct. 15 – A US District Court has dismissed two claims filed by Affymetrix which asserted that Incyte had violated its “two-color” patent while also denying Incyte’s motion to find another Affymetrix patent invalid, the companies said on Monday.

In a statement, Incyte said that the US District Court for the Northern District of California issued a summary judgment ruling dismissing claims that Incyte had violated a patent designed to protect Affymetrix’ use of two-color fluorescent labels in microarray experiments.

The Court also denied a motion by Incyte to find another Affymetrix patent invalid, explaining that it had rejected Incyte’s argument that "predefined region" was not adequately described in the patent's specification, according to Affymetrix.

The case is expected to go to trial in April 2002.

"The Court's ruling is a victory, not only for Incyte, but for the entire medical research community," Lee Bendekgey, Incyte's general counsel, said in a statement. "Affymetrix has continually asserted that it owns the field of DNA arrays regardless of the method of manufacture and regardless of the uses to which those arrays are put. These rulings significantly scale back the scope of the Affymetrix' patent estate."

Affymetrix, predictably, had a different take on the rulings.

"It is also important to note that this case involves only three patents in the Affymetrix patent portfolio, which includes over 130 issued and over 300 pending U.S. patents,” Barbara Caulfield, Affymetrix’ general counsel said in a statement. "Affymetrix has the valid claims it needs under the '305 and '934 to prove that Incyte infringes Affymetrix' patents."

Both Affymetrix of Santa Clara, Calif., and Incyte of Palo Alto, Calif., manufacture DNA arrays, although Affy's arrays use photolithography to synthesize oligos on its arrays, whereas Incyte uses spotted arrays where the cDNA is printed on the chip.

The decision follows a host of similar rulings in which the court determined that certain aspects of Incyte’s cDNA microarrays and polynucleotide arrays do not infringe other Affymetrix patent claims.

Incyte has filed an additional motion for summary judgment for Affymetrix’s remaining claims that Incyte’s polynucleotide arrays infringe on Affy’s patents. That hearing will take place on Oct. 16. 

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