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Seeking to Gain an Edge in Nascent Synthetic Bio Market, Febit Sues Codon for Infringement

Febit Biotech last week announced that it has sued Codon Devices for allegedly infringing US Patent No. 6,586,211, which covers a method for making synthetic nucleic acids on microarrays. According to a company official, the suit comes after Codon and Febit failed to work out a licensing agreement for the IP.
In the suit, filed in the US District Court for the District of Delaware, Febit seeks an injunction against Codon as well as “unspecified monetary damages arising from Codon Devices’ unauthorized use of the patented technology and the continuous willful infringement of Febit’s '211 patent.”
In response to Febit’s allegations, Codon said last week that it had previously filed a complaint for declaratory judgment against Febit in a US District Court in Washington, DC, stating that it is not infringing the ‘211 patent, which it called "invalid and unenforceable."
In the complaint, filed June 29, Codon is seeking an order that would restrain Febit from asserting the ‘211 patent against it. Codon also filed with the court to extract reimbursement from Febit for its expenses in the matter. Codon Devices said that Febit’s infringement suit is “meritless.”
An attorney for Codon did not return a call seeking comment by press time.
Febit’s chief scientific officer Peer Stähler told BioArray News this week that the firm has invested heavily in developing its synthetic biology application since its inception eight years ago and that investors see it as one of the most potentially lucrative applications in the company’s broadening portfolio.
“It is one of the major strategic projects that we agreed upon with our investors in 2005 when [Febit’s main investor] the Hopp Group invested in our company,” Stähler said. He added that there is considerable “hype” around synthetic biology and that Febit believes it is “going to be a very big market.”
Febit recently launched a synthetic biology subsidiary, called Febit Synbio, to commercialize its method of building synthetic genes on its arrays, a method that differs from and could be less expensive than those used by competitors like Blue Heron, which uses its GeneMaker tool to assemble double-stranded oligos into full-length genes inside a column on a solid support matrix (see BAN 5/22/2007).

“I think it is only natural to defend one’s turf and to ask competitors to step aside and maybe follow more technical paths.”

However, Febit believes that Codon, which uses a tool called BioFab to construct its synthetic genes, is actually building its oligos on an array, which Stähler said threatens Febit’s ability to exploit the market. According to Stähler, Febit has approached Codon regarding a licensing agreement, but these discussions have not panned out.
“Codon had filed for [a] license [to the Febit IP] in 2004 or 2005, but it didn’t make any attractive offer [on royalties to Febit] at the time. Therefore I think it is only natural to defend one’s turf and to ask competitors to step aside and maybe follow more technical paths,” he said.
“Eventually we want to exploit this IP. We [can] do that together with partners, but if we meet a competitor that is using this technology, we have to shut them down obviously,” Stähler said. He added that Febit is still open to a licensing arrangement. Stähler noted that this is the first litigation Febit has been involved in, but the firm believes that “this is a tremendously vital area and we cannot accept that other companies are almost copying our business plan.”

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