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Judge's Markman Ruling Sides With Third Wave in Digene HPV IP Row

NEW YORK (GenomeWeb News) — A US District Court in Wisconsin has sided with Third Wave Technologies in an IP infringement imbroglio between Third Wave and Digene, the companies said in separate statements this week.
The US District Court for the Western District of Wisconsin yesterday issued a claims construction opinion and order in a patent-infringement case between Digene and Third Wave. According to Third Wave, the court “agreed with each and every of Third Wave’s definitions for the disputed claims terms.”
The firms have been embroiled in a suit filed by Digene in January and a countersuit filed by Third Wave two months later over Digene’s US Patent No. 5,643,715 covering probes and methods for detecting human papillomavirus type 52, a high-risk type of HPV.
The Markman ruling does not address Third Wave’s countersuit, which claims that Digene has “abused its monopoly power to thwart competition” in the HPV diagnostics market.
A trial for that lawsuit is expected to take place in February 2008.
Third Wave said that it plans to file a motion for summary judgment of non-infringement and invalidity in September.
“We believe the order reinforces the narrow scope of the asserted patent claims and Third Wave’s position that we do not infringe,” Third Wave CEO Kevin Conroy said in a statement. “Today’s Markman order also strengthens our view that Digene’s suit was brought in an attempt to impede competition in the HPV testing market.”
Separately, a Digene spokesperson said in a statement: "We clearly disagree with the court's decision, and continue to believe in the strength of our claims and remain committed to vigorously enforcing our intellectual property rights. As such, we are reviewing the court's opinion and evaluating our legal alternatives and next steps."

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