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Judge Rules ABI BigDye 3.0 Does Not Infringe on AP Biotech s Patent

NEW YORK, April 9 – In the latest development of Applied Biosystems’ and Amersham Pharmacia Biotech’s patent infringement battle over sequencing dye chemistries, a judge has ruled that Applied Biosystems' BigDye 3.0 does not infringe upon patents held by Amersham Pharmacia Biotech for labeling in its Dyenamic ET Terminator Kits, the companies said Monday.

This summary judgment ruling, made by Judge Charles Breyer in the U.S. District Court for the Northern District of California, removes a potential legal obstacle to Applied Biosystems' continuing sales of BigDye 3.0. It also limits the amount of potential damages that AP Biotech can recover in its suit against Applied Biosystems to those stemming from ABI’s sale of previous versions of BigDye, and clears the way for the case to go to trial.

On December 22 of last year, Judge Breyer ruled that Applied Biosystems’ previous BigDye chemistries infringe upon AP Biotech’s energy-transfer fluorescent labeling patent, No. 5,688,648.

“We’re surprised by the ruling, and will be looking at an appeal of it, but at the same time, it doesn’t affect a ruling we had in December that all the other versions of BigDye did infringe,” said Tracy Cheung, vice president of investor relations at AP Biotech.

The trial will now proceed on the issue of whether AP Biotech’s patent is valid or enforceable, as well as on Applied Biosystems’ claim that AP Biotech is infringing on another Applied Biosystems’ patent through selling its MegaBACE DNA sequencing instrument.  

"This decision confirms Applied Biosystems' freedom to continue to employ energy transfer technology in the field of DNA sequencing through sales of its state-of-the-art ABI Prism BigDye Version 3.0 DNA sequencing chemistry,” said Applied Biosystems president Michael Hunkapiller in a statement.

"Furthermore, we remain confident that we will establish that the claims of the '648 patent are invalid and unenforceable due to improper claims of inventorship, inequitable conduct by the inventors during prosecution of the patent application leading to the '648 patent, and prior technical work published by others,” Hunkapiller said.

The trial is expected in a matter of weeks, but Judge Breyer has yet to set a date.

Meanwhile, AP Biotech recently launched another competitive assault on Applied Biosystems’ sequencing dyes, releasing a new sequencing kit designed specifically for use on the ABI 3700. “For the first time, their customers will be able to use our kit as well,” said Cheung.  
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