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Illumina and Affy Each Claim Victory in Markman Ruling as Court Date Nears

NEW YORK (GenomeWeb News) - Illumina and Affymetrix each said separately yesterday that a district judge's interpretation of key terms in an ongoing patent-infringement case Affy filed in 2004 favors their respective positions.
 
Judge J. Farnan of the United States District court for the District of Delaware issued a Markman order to interpret 15 disputed claim terms. According to Affymetrix, the judge ruled in its favor for most terms and adopted only two of Illumina's proposed constructions.
 
In a statement, Affymetrix said the court found that the patents in question are not limited to in situ synthesis; to probes chemically linked to a single surface; or to the placement of proves at predetermined locations despite Illumina’s claims to the contrary.
 
In contrast, Illumina said the Markman order adopted its position as the "proper interpretation," though the judge denied Illumina's motion to dismiss one of the patents for lack of standing, Affymetrix said.
 
"We have strongly believed since this suit was filed that Affymetrix's allegations are without merit, and that this suit is a result of Affymetrix' unfortunate decision to compete in the courtroom rather than in the marketplace,” Illumina CEO Jay Flatley said in an Illumina statement.
 
“We believe this ruling supports our non-infringement and invalidity positions and counterclaims in this case and we look forward to obtaining favorable results to that effect,” he added.
 
Affymetrix sued Illumina on July 26, 2004, for allegedly infringing six patents in the DNA microarray field and related technology. Affy dropped one of the patents from the suit in March.
 
Illumina said it does not infringe Affymetrix' patents and that these patents are, in any event, invalid and unenforceable.
 
Affymetrix is seeking remedies including lost profits, a royalty, trebled damages for willfulness, and a permanent injunction. The trial is scheduled to begin Oct. 16.
 
Separately today, investment bank UBS lifted Affymetrix’ price target to $20 from $18.

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