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Eppendorf Survives IP Challenge in Europe, But Clondiag Vows to Appeal EPO Decision

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Eppendorf Array Technologies has fended off what appears to be the first challenge to its Intellectual Property in Europe.

The Opposition Division of the European Patent Office handed down an interlocutory, or preliminary, decision Jan. 5, maintaining Eppendorf's EP117980 patent in its amended form following a 3-year opposition by Clondiag Chip Technologies, according to OD documents.

Eppendorf currently has approximately 12 enforceable patents related to its array technology in Europe. So far, Clondiag appears to be the only company to oppose its IP through the EPO.

Martin Huenges, a patent attorney with Munich-based Maiwald Patentanwalts which represents Clondiag, told BioArray News this week that Clondiag intends to appeal the Opposition Division's decision.

Huenges said that "although Clondiag products do not fall under the patent as maintained, our client will appeal the decision because the reasoning [of the OD] appears to be untenable to us."

He declined to comment on why Clondiag would pursue its opposition to Eppendorf's patent if its products did not fall under the patent as amended.

The patent, entitled "Method for the identification and/or the quantification of a target compound," was granted in 2002 and describes a method for identifying and quantifying a target compound using microarray hybridization on an array where the density is defined as being more than "20 discrete regions per cm²," and performing a reaction that results in the formation of a precipitate of a metallic compound.

The patent also claims a "diagnostic and/or quantification kit," as well as an apparatus and informatics for performing the reaction.

Nearly a year after the EPO granted Eppendorf's patent, Clondiag filed an opposition in February 2003, requesting that the patent be revoked because it lacked novelty, did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by one person, and that the subject matter of the patent extended beyond the content of the application of the patent as filed.

Clondiag specifically took issue with the density described by Eppendorf in its patent claims, as well as the mention of the use of a reagent in the experiment, arguing that Eppendorf had "added subject matter" with a "clear lack of disclosure."

The EPO found that Eppendorf's patent did not cover a kit comprising the combination of an array and a reagent for performing the experiment in the first place. It also found that its claims regarding density lacked novelty, but decided to maintain the patent in amended form.

Representatives for Eppendorf did not reply to requests for comment on the OD's decision. Typically, the OD will issue a final decision following the interlocutory decision, after which parties may file an appeal with the EPO's Appeals Division within three months of the final decision date.

— Justin Petrone ([email protected])

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