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Court Dismisses Third Wave's Antitrust Case Against Qiagen; HPV Patent Litigation Still Ongoing

NEW YORK (GenomeWeb News) – Qiagen said Friday that a US district court has dismissed an antitrust suit that Third Wave Technologies filed against it last year as part of an ongoing legal battle over human papillomavirus testing technology.
Qiagen said that the US District Court for the Western District of Wisconsin has granted its Qiagen Gaithersburg subsidiary, formerly Digene, summary judgment on the antitrust counterclaims.
Judge Barbara B. Crabb ruled that Third Wave had "failed to show any violations" by Qiagen of antitrust laws, Qiagen said.
The ruling comes on the first anniversary of the legal dispute, which began when Digene filed suit against Third Wave for infringing US Patent No. 5,643,715, entitled “Human Papillomavirus Type 52 DNA Sequences and Methods for Employing the Same.” The patent is assigned to Georgetown University and has been exclusively licensed to Digene.
In March, Third Wave countersued for “monopolistic abuse,” noting that its claims were “based on Digene’s repeated abuse of its substantial market power … and the direct and substantial antitrust injury to Third Wave and consumers resulting directly from Digene’s anti-competitive conduct.”
In July, the Wisconsin court agreed with Third Wave’s definitions for each of the disputed patent claims in its suit against Digene and denied a request by Digene to reconsider the ruling. Qiagen officials later said they planned to appeal the claims-construction ruling.
Peer Schatz, CEO of Qiagen, said in a statement Friday that the ruling regarding the antitrust counterclaims “makes clear that Qiagen's leadership in the marketplace for HPV testing is the result of the trust we have earned with our customers based on the quality and performance of our molecular diagnostic solutions for HPV, our products' overwhelming clinical validation, and the fact that we are the first and only company to have received FDA approval for our molecular HPV test."
The company cited Crabb's ruling, which stated that Qiagen "is selling a product that many customers prefer over the product defendant is selling, with the not surprising result that defendant has not captured as many customers as it wishes it had."
In response, Third Wave Technologies President and CEO Kevin Conroy said in a statement today, "We respectfully disagree with the court's ruling Friday on our anti-trust claims and are considering our options."
He added that Third Wave had "won the most important battle in our dispute with Digene last October when Digene said it couldn't win its patent suit unless it successfully appealed the court's Markman order that constructed the patent claims at issue in Third Wave's favor."
Qiagen said it will “continue to aggressively pursue its pending patent litigation, in which Qiagen alleges that Third Wave is infringing on Qiagen intellectual property.”