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Abbott Follows Applera s Lead in Ending Opposition To Affy European IP; CMBX, Others Vow to Fight On

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Abbott Laboratories earlier this month withdrew its opposition to two Affymetrix patents in Europe, according to documents filed with the European Patent Office and obtained by BioArray News.

The withdrawal comes one month after Affy licensed certain undisclosed array-related patents to Abbott. It also follows a similar move by Applied Biosystems, whose parent company Applera in February withdrew its opposition to Affy's IP in Europe two months after licensing an undisclosed technology from Affymetrix (see BAN 4/11/2006, BAN 3/7/2006).

However, though the two companies have decided to end their quest to invalidate the IP, the remaining opposition parties, including CombiMatrix and others, will most likely continue their fight.

The patents under attack are "Detection of nucleic acid sequences" (EP0834576) and "Identification of nucleic acids in samples" (EP0834575).

Last month, Affymetrix licensed to Abbott Laboratories division Abbott Molecular a number of undisclosed patents that would enable the company to "manufacture and sell comparative genomic hybridization microarrays, related readers and software in the research and diagnostics field." Affy said at the time that the license is worldwide and non-exclusive (see BAN 4/11/2006).


"We have no plans to license and will continue to oppose."

The IP would support Abbott's GenoSensor System platform for array CGH applications, which is sold for research purposes only. Abbott said it is preparing to launch a diagnostic version of the system, called GeneTrait Microarray System Dx, in the first half of 2007 (see BAN 5/2/2006).

According to EPO's online database, Abbott told the agency on May 5 that it is withdrawing its opposition to Affy's two patents.

IP Ups and Downs

The '576 patent describes a method of detecting nucleic acid sequences on an array comprising more than 100 probes on which two fluorescent labels are used to differentiate between collections of nucleic acids. The '575 patent, meantime, claims "a method of collecting a nucleic acid sample or samples from individual(s), hybridizing the sample to probes on an array, and then comparing the gene-expression patterns to detect genetic variation, make a diagnosis et cetera."

The EPO revoked the '576 patent in May 2005 after Applera, CombiMatrix, Abbott Laboratories, PamGene, and others successfully opposed it through the EPO's opposition division. Affy appealed the decision two months later. The opposition division has not reached a decision on the '575 patent.

Roche Molecular Diagnostics, now an Affy partner, had also filed opposition to the '576 patent in October 2002, but withdrew its opposition in December 2003 (see BAN 3/9/2005).

On May 12, the EPO's appeals division said the remaining parties will continue their appeal.

"We have no plans to license and will continue to oppose," Bret Undem, CombiMatrix's vice president of business development, told BioArray News this week.

In an interview last year, CombiMatrix CEO Amit Kumar said his firm objected to several Affy patents because CMBX believes it is overreaching in its scope. "We oppose a number of Affy patents," said Kumar at the time. "We don't think that Affy, or anyone for that matter, should dominate a product that it does not teach or describe." (see BAN 3/9/2005)

Suleman Ali, the attorney representing Peter Schneider, the German doctor opposing the '576 patent, this week said that his client has not changed his position on Affy's IP.

However, legal representatives from Dutch array firm PamGene, which is opposing the '576 patent, this week declined to comment whether the company will continue its opposition.

Officials from Clondiag, which is opposing the '575 patent, also declined to comment on the status of their oppositions.

— Justin Petrone ([email protected])

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