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Southern: Affymetrix Lawsuit Intended to Open Up Microarray Market

NEW YORK, Nov 15 – Oxford Gene Technologies sued Affymetrix for patent infringement because it wants to open up the microarray market to a greater number of competitors, OGT founder Ed Southern said Wednesday.

“I think it’s undesirable for one company to have the monopoly position,” Southern told GenomeWeb. “What we’re trying to do is widen the access.”

Southern believes the genomics sector would benefit if more players were allowed into the microarray market.

“There are many different uses for the microarrays, and many different ways in which they can be made,” he said. “If one company has a monopoly, some of these methods, which might be really good methods, won’t have a chance to flourish.”

But Southern is not just fighting an antitrust holy war: OGT stands to profit greatly from a field with more players. The company holds broad microarray patents—the Southern patents— for the process he invented at Oxford University’s Biochemistry department in 1988, and any new entrant into the microarray market is a potential licensee.

“I think [the microarray] field is being held down somewhat because of the IP situation,” he said. “If that can be freed up, I am sure the field would expand more rapidly. One consequence of that would be that we would get more licensing revenue.”

In the past two years, OGT has sought to license the Southern patent to a number of companies, including Affymetrix.   It has so far entered into licensing agreements with Incyte and Hewlett-Packard subsidiary Agilent. The company is currently in licensing discussions with more than 30 companies, including Motorola, Nanogen, and Amersham Pharmacia Biotech, said Southern.

“We have a basic dominating patent, and naturally everyone wants to speak to us about using that,” he said.

In fact, OGT’s current battle with Affymetrix stems from a licensing discussion gone awry. Affymetrix was engaged in good faith licensing discussions with OGT, when it alleges OGT cancelled these discussions and sued it in US and UK courts.

OGT won the latest round of this lawsuit Friday when a Delaware jury found Affymetrix had infringed upon the Southern patent.

But Affymetrix has counterattacked by alleging at trial that OGT cancelled the licensing discussion because it was conspiring with Agilent and AP Biotech against Affymetrix. Affymetrix asserted during a pre-trial hearing that OGT was having its legal fees paid through a $15 million agreement with Agilent, and has raised fraud and antitrust violations later on.

Southern called these latest allegations “nonsense.”

“There’s no doubt we’ve had conversations with Hewlett Packard and Amersham and others. We were discussing licensing with them,” he said. ”We also wanted to have a business relationship between OGT and both of these companies. But the nature of these negotiations has been misinterpreted as being a planned and coordinated attack on Affymetrix’s position.”

While the Affymetrix lawsuit continues, it is only part of OGT’s complex legal battle to get its patents recognized, Southern said, refusing to elaborate on which other companies OGT is suing.

“I think litigation is necessary to fight through to get to the right position,” said Southern. “But it’s not the best tool. It’s much better when people can talk.”

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