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Illumina to Take Depositions from Fodor, Yap In Affy Litigation; Incyte Also Gets Subpoena

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Illumina has scheduled dates over the next few weeks to take depositions from some of Affymetrix's highest-ranking officials as part of Affy's year-old patent-infringement suit against the company. In addition, Illumina has subpoenaed Incyte to provide its attorneys with documents related to its earlier litigation with Affy, according to notices filed last month in a US District Court.

Illumina has scheduled depositions for Affy founder, chairman, and CEO Stephen Fodor; Greg Yap, the company's vice president of DNA Products; and Carl Raimond, Affy's market development manager. Illumina has also scheduled depositions for Richard Rava, senior VP of research at Affymetrix Labs; and Leighton Read, Donald Besemer, and Michael Pirrung, scientists that are or have been affiliated with the company.

Fodor, Rava, Read, and Pirrung are all credited as inventors on the technology protected by the six patents at the heart of Affy's July 2004 patent-infringement suit against Illumina. Mark Chee, an Illumina co-founder, former Affy scientist, and an assignee on the patents, has also been scheduled for deposition. (see BAN 9/14/2005)

The depositions from Fodor, Read, Rava, Yap, Raimond, and Pirrung are scheduled for later this month. Besemer's deposition is scheduled for January 2006.

Affymetrix has also scheduled its own depositions in the case and in September subpoenaed Illumina investor CW Group.

A source close to the case told BioArray News this week that Oxford Gene Technology may receive a subpoena similar to Incyte's in relation to its own litigation with Affymetrix. The source, who represents one of the companies in the Affymetrix vs. Illumina litigation, requested to remain anonymous.

Incyte settled a patent infringement case against Affymetrix in December 2001 that resulted in Affy paying the company $4.5 million. Affymetrix ended four years of litigation with OGT in June 2004, agreeing to pay the company $62.5 million.

Affymetrix sued Illumina in July 2004 for allegedly infringing six of its patents. Two of the patents concern a computer-aided visualization and analysis system for sequence evaluation. The remaining four cover methods for processing multiple biological chip assays, products for detecting nucleic acids, methods and devices for packaging a substrate, and a nucleic acid reading and analysis system. Two months later, Illumina disputed the charges claiming that the IP is so broad as to be invalid.

In an August 9 filing with the Securities and Exchange Commission, Illumina stated that the suit against it "seeks an unspecified amount of monetary damages and a judgment enjoining the sale of products that are determined to be infringing these patents."

A scheduling order filed in US District Court on July 13 set the trial date in the case for Oct. 16, 2006.

— Justin Petrone ([email protected])

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