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MIT, E8 File Patent Infringement Suit Against Affymetrix

This article has been updated to include a response from Affymetrix in a regulatory filing.
NEW YORK (GenomeWeb News) – The Massachusetts Institute of Technology and E8 Pharmaceuticals have filed a suit against Affymetrix alleging that the firm is infringing their patent covering a genotyping method.
The suit, which was filed earlier this week in the US District Court for the District of Massachusetts, claims that Affy’s use, manufacture, and sale of its GeneChip products for certain applications infringes US Patent No. 6,703,228. That patent was issued to MIT in March 2004 and was licensed to E8 Pharmaceuticals, a Cambridge, Mass.-based firm co-founded by MIT Professor David Housman, who is named as one of the inventors in the patent.
According to court documents, the ‘228 patent covers technology that “enables users to perform accurate, reproducible and cost-effective genetic analysis, using minute amounts of sample DNA and a small number of reactants to generate results that were previously impossible, even in specialized high throughput centers using many thousands of different reactants.”
The dispute between Affy and MIT over the patent has been ongoing for a few years. Six months after MIT was granted the ‘228 patent, Affymetrix filed a patent application claiming priority to an earlier 1994 application, according to the suit filed this week. Then, in March 2005, Affy filed new claims with the US Patent and Trademark Office asserting patentability of and ownership of the method claims in the ‘228 patent.
Following a year of patent interference proceedings, the USPTO on May 2, 2007, ruled that Housman’s group at MIT “was the first to invent the claimed methods and was therefore entitled to the patent,” according to court documents.
MIT and E8 have asked the court to enter a judgment that Affy has infringed the ‘228 patent. They also are seeking triple damages because they believe that alleged infringement has been willful. In addition, they have asked the court to award them ongoing royalties or issue a permanent injunction prohibiting Affy from “continued unlicensed infringement.”
In a filing with the US Securities and Exchange Commission today, Affy said that it believes the plaintiffs' "claims are without merit and we will vigorously defend against the claims advanced in the complaint."