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USPTO to Re-examine Two Patents in Affymetrix, Illumina Litigation

NEW YORK (GenomeWeb News) – Illumina said today that the US Patent and Trademark Office has ordered a re-examination of two patents at the heart of ongoing intellectual property litigation between the firm and Affymetrix.
 
The two patents being re-examined are No. 6,355,432, entitled “Products for detecting nucleic acids,” and No. 6,646,243, entitled “Nucleic acid reading and analysis system.”
 
Both patents are assigned to Affymetrix and are part of Affy’s patent infringement suit filed against Illumina in July 2004 in the US District Court for the District of Delaware.
 
In March, a jury sided with Affy in the first phase of the litigation. It found that Illumina's arrays, assays, scanners, software, and related products infringe “one or more claims” of all five of the patents Affy mentioned in the suit.
 
The jury awarded total damages of more than $16.7 million for the period of 2002-2005 and imposed a royalty of 15 percent.
 
The next phase of that case will focus on the validity of Affymetrix's patents and is scheduled to begin on Feb. 11, 2008. The following phase is expected to occur in May or June 2008 and will determine whether Illumina's infringement was willful.

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