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Suits Resume as Invitrogen v. Bio-Rad and Amersham v. PerkinElmer Miss Settlements

Two separate patent-infringement cases among four companies in the BCW Index are proceeding after the parties in the cases failed to reach settlements, and stays on the litigation were lifted.
 
The two cases are Invitrogen’s suit against Bio-Rad Laboratories for allegedly infringing patents covering electrophoresis gels, and Amersham Biosciences’ suit against PerkinElmer for allegedly infringing its technology for high-throughput screening of compounds. Though both cases could still be settled, recent court documents show that all of the parties will now resume the litigation.
 
In the Invitrogen v. Bio-Rad case, both firms had asked the court in the beginning of September to stay the case so they could extend ongoing settlement negotiations.
 
But according to a court document dated Sept. 29, Invitrogen and Bio-Rad confirmed during a case-management conference that day that they had failed to reach a settlement in the case. As a result, the court lifted the stay on the discovery phase in the trial and ordered the parties to proceed according to schedule.
 
Ron Hutton, Bio-Rad’s treasurer, told BioCommerce Week that although the firm does not discuss active litigation, “Certainly, we would be in favor of settling.”
 
Coincidentally, that same day, court documents show that PerkinElmer and Amersham Biosciences had failed to settle their patent-infringement case during a two-month stay.
 
According to the filing, PerkinElmer submitted a proposed schedule for proceeding with the case, including closure of the discovery phase on Dec. 26. PerkinElmer said that it had proposed the schedule to Amersham, which is part of GE Healthcare, in correspondence dated Sept. 20, but Amersham had not responded by the time of the court filing.
 
Invitrogen v. Bio-Rad
 
Invitrogen’s suit against Bio-Rad, filed in April 2005 with the United States District Court of the Southern District of California, alleges that a number of Bio-Rad's Criterion XT gels infringe three patents owned by Invitrogen: US Patent No. 5,922,185, No. 6,162,338, and No. 6,783,651 (see BioCommerce Week 4/28/2005).
 
All three patents are entitled "System for pH-neutral stable electrophoresis gel" and list Timothy Updyke and Sheldon Engelhorn as inventors. Two of the patents are assigned to Novel Experimental Technology, or Novex, a San Diego-based company specializing in pre-cast electrophoresis gels. Invitrogen acquired the company in 1999 in a stock deal worth about $50 million.
 
Invitrogen, which said it has not licensed the patents to any other party, employs the technology in its line of NuPAGE gels, which are small-format precast polyacrylamide gels used to separate proteins. In the court filing, Invitrogen said the technology had been "immensely successful."
 
Invitrogen claimed that Bio-Rad's Criterion XT gels, introduced in 2003, contain "Bis-Tris," a chemical responsible for the neutral pH and thus for the properties of the gels protected by Invitrogen's patents. The company therefore claims the gels have been "eroding Invitrogen's market share in the PAGE gel market" since they were introduced in 2003. Invitrogen supported this claim by saying that sales of the Bis-Tris NuPAGE gels declined by 16 percent between 2002 and 2004.
 
Invitrogen also claimed that Bio-Rad "is luring Invitrogen's current NuPAGE gel customers to switch to Criterion XT gels by [offering] cheaper prices (per samples) for those NuPAGE customers who will purchase Criterion XT gels."
 
Amersham v. PerkinElmer
 

A Bio-Rad official said of the Invitrogen litigation: “Certainly, we would be in favor of settling.”

Amersham’s suit against PerkinElmer dates back to Oct. 16, 2003. The suit, which was filed in the US District Court, District of New Jersey, alleged that PerkinElmer’s ViewLux instrument and Image FlashPlates infringe two patents — US Patent No. 6,563,653 and US Patent No. 6,524,786 — held by Amersham and co-plaintiff Image Research, an affiliate of Amersham.
 
In its complaint, Amersham claimed that “PerkinElmer has directly infringed the ‘786 patent, and has contributed to and actively induced infringement of the ‘653 patent in the United States by its customers.”
 
Amersham also has claimed willful infringement by PerkinElmer, and as a result has asked the court to grant treble damages as well as reasonable attorneys’ fees.
 
Neither company responded to a request for comment by press time.

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