Now that one of Affy’s patents has been revoked — however temporarily — in Europe, companies like CombiMatrix and Applera may see the EPO as a more attractive route for opposing patents, rather than taking up the matter in the litigation-friendly US.
According to CombiMatrix’ CEO Amit Kumar, his firm has no plans to oppose any of Affymetrix’ US patents, unless the US moves to a system similar to one used in Europe and Japan that incorporates opposition into the format of granting patents.
“If the US does develop an opposition system like Europe, then we will certainly be active,” he said.
But how long will it be before patent reform like that takes effect? Some patent attorneys say they believe it may be inevitable, and British patent attorney Tony Maschio from D. Young and Associates, said that he is aware of three legislative proposals in the US to move to an opposition system.
Regardless, if the US moves to an opposition system, Affymetrix’ method wouldn’t be subject to opposition because it was never patented in the US. The priority US application that the European patent was based on was initially filed in December 1990, according to the US Patent Office, but later abandoned by Affymetrix.
Individual claims of the patent, however, are still part of other US patent applications that Affy has filed in the 15 years since it tried to get the rights to them, and are currently awaiting approval.