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Illumina to Pay Affy $90M to Settle Patent Suits, Cease Litigation

NEW YORK (GenomeWeb News) - Illumina said today that it will pay Affymetrix $90 million to settle all ongoing lawsuits between the two companies and that both firms have agreed to a covenant not to sue for use of current and future products.
The agreement ends litigation between the companies in the US, Germany, and the UK dating back to 2004.
Last March, a jury sided with Affy in the first phase of the litigation, finding that Illumina's products infringed “one or more claims” of Affy’s patents and awarding total damages of more than $16.7 million for the period of 2002-2005 based on a royalty of 15 percent for that period.
The next phase of the case, which was to focus on the validity of Affymetrix's patents, was supposed to begin on Feb. 11, 2008.
The terms of the settlement announced today call for Illumina make the one-time payment of $90 million, without admitting liability.
Illumina said the settlement dismisses all litigation and that it will pay Affymetrix when the courts formally dismiss the suits.
The agreement formally dismisses with prejudice Illumina’s counterclaims and grants Illumina, its customers, and affiliates a perpetual covenant not to sue for “making using or selling any of Illumina’s current products, evolutions of those products and services related thereto,” Illumina said.
Affy also agreed to extend the covenant not to sue to cover the making, using or selling of Illumina products based on future technology developments.
The deal covers all fields except for photolithography, a field in which Illumina does not operate.
The suits were filed in the United States District Court for the District of Delaware; in Regional Court in Dusseldorf, Germany, and in the High Court of Justice, Chancery Division - Patents Court in London.
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