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Third Wave Countersues Digene for 'Monopolistic Abuse' in HPV Dx Market

NEW YORK (GenomeWeb News) — Third Wave Technologies today said it has countersued Digene after the company sued Third Wave in January for allegedly infringing its human papillomavirus IP.
 
In its suit, filed with the US District Court for the Western District of Wisconsin, Third Wave claims Digene has “abused its monopoly power to thwart competition” in the HPV diagnostics market.
 
Third Wave CEO Kevin Conroy said Digene sued his company for patent infringement because Third Wave’s Invader product is “superior to Digene's,” and he asserted again, as the company did at the time of the Digene suit, that the Invader does not infringe on Digene’s patent.
 
Third Wave maintains that Digene’s US Patent No. 5,643,715 covers only HPV type 52, a type the company said is prevalent only in .5 percent of all US HPV-positive cases.
 
Third Wave has retained Kirkland and Ellis, a law firm with anti-trust and IP litigation experience, to present its case, the company said.  
 
The company said a conference on March 15 will convene to set a date for the trial, which it expects to be sometime in early 2008.
 
Third Wave settled a related suit against Digene in January 2006, which resulted in an agreement that did not grant “any license or freedom-to-operate under the patents-in-suit and without any effect on the patents-in-suit," Digene said at the time.
 
The two companies also agreed at the time not to sue each other for a period of one year, which expired last month.

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