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US Patent Office Names Illumina 'Senior Party' in IP Interference Case With Affy

NEW YORK (GenomeWeb News) — The US Patent and Trademark Office said that a patent interference exists between an Illumina patent application and Affymetrix’ inversion probe genotyping technology, and has named Illumina the ‘senior party’ in the case, Illumina said today.
The decision pertains to a lawsuit filed by Affymetrix against Illumina in July 2004 that claims Illumina infringes six patented DNA microarray and related technologies.
Affymetrix acquired the technology through the purchase of ParAllele BioScience.
Illumina today said the USPTO named the senior party because its “original patent filing predates that of the ‘412 patent.”  
The interference proceeding will try to sort out which company first invented the technology that is held under the USPTO No. 6,858,412.
In its suit, Affy is demanding lost profits, royalties, damages for willful infringement, and a permanent injunction prohibiting Illumina from using the technology in the future.
As GenomeWeb News reported in November 2006, a judge in a Delaware District Court issued a Markman order to interpret 15 key terms of the case.   
Both parties interpreted the announcement as a small victory: Affymetrix said the court found that the patents go beyond in situ synthesis, probes linked to a single surface, or to the placement of probes at predetermined locations.
Meantime, Illumina held that the ruling supported its position as the “proper interpretation,” although the judge in the case denied Illumina’s motion to dismiss the case.
Illumina CEO Jay Flatley has maintained that Affymetrix’s allegations are “without merit,” as Illumina’s opinion is that the patents are “invalid and unenforceable.”
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