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OGT Lawsuits Slated to go to Trial in 2004, 2005; Company and Nanogen in Mediation


Court dates have been set in the three patent infringement lawsuits filed by Oxford Gene Technology, the UK-based firm created to manage the broad portfolio of patents developed by microarray pioneer Ed Southern, and it will be at least a year before juries get to hear cases that might affect the growth of the microarray industry.

In what some have termed a holiday surprise, the company’s lawyers filed patent infringement lawsuits against a broad swath of microarray-related vendors in late December. The 19-employee IP-management firm (see interview with Peter Hotten of OGT, page 6) filed a patent infringement suit on Dec. 23 in Delaware US District Court against Mergen of San Leandro, Calif.; BD Biosciences Clontech of Palo Alto, Calif.; PerkinElmer Life Sciences of Wellesley, Mass.; Axon Instruments of Union City, Calif.; Genomic Solutions of Ann Arbor, Mich.; and BioDiscovery of Marina Del Rey, Calif. The company filed a patent infringement suit against San Diego-based Nanogen on Dec. 18 in Delaware, and against Motorola in US District Court for the Northern District of Illinois on Dec. 13.

The first case to go before a federal jury is Oxford Gene Technology v. Motorola, which is scheduled to begin on July 19, 2004, and will be heard in the Northern District of Illinois.

The other two cases, filed in the US District Court of Delaware, are scheduled to go to trial in early 2005, according to court documents.

The outcome of these lawsuits, if they should go to trial, could determine whether Oxford owns the key intellectual property that underpins microarray technology, and can collect licensing fees and other revenues from users, ranging from companies that produce instrumentation to others who manufacture glass slides or create microarrays.

OGT has had spectacular success in defending its patents, getting a $19 million settlement out of Affymetrix after a jury in Delaware federal court found that Affymetrix had infringed on OGT’s US patent No. 5,700,637.

In its outstanding suits, the company already has inked settlements with Genomic Solutions (May 12), and Axon (June 18). Genomic Solutions, which has exited the business of manufacturing pre-printed arrays, was the first to fall, agreeing to display “certain notices” in connection with the marketing of certain genomic-related products and to pay an undisclosed “nominal amount” to Oxford Gene Technology. Axon, which manufactures a scanner/reader instrument, agreed to much the same settlement and today its website also displays “certain notices.”

Other defendants, however, are striking back. Mergen filed a counter suit on Feb. 20 while Nanogen filed its counter claim on April 4.

Nanogen and Oxford Gene Technology began a court-ordered mediation process last week. Mediation is a voluntary and non-binding court-run process that is less formal than arbitration.



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