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23andMe Sues Ancestry for Patent Infringement, Misleading Marketing

NEW YORK (GenomeWeb) – 23andMe sued rival on Friday in a California federal district court, alleging infringement of its patented method of identifying relatives in a database and of false advertising. The company also asked the court to nullify the trademarked "ancestry" logotype.

Mountain View, California-based 23andMe and Lehi, Utah-based Ancestry are competitors in the rapidly growing genetic ancestry testing market. Ancestry boasts having approximately 10 million customers for its AncestryDNA testing service, while 23andMe claims to have tested 5 million customers.

In a lawsuit filed in the District Court for the Northern District of California on May 11, 23andMe alleges that Ancestry was infringing US patent No. 8,463,554, entitled "Finding relatives in a database," which describes a method of analyzing "identical by descent" regions of the genome and determining the degree to which two people in a database are related. 23andMe claims that Ancestry has been infringing its '554 patent claims since at least 2013 and cites a white paper describing a similar method of identifying relatives within the AncestryDNA service. 

Methods comparing Y-chromosome DNA or mitochondrial DNA are typically used to identify patrilineal and matrilineal ancestors. However, 23andMe claims that because these methods aren't so effective in identifying closer relations, the inventors of the '554 patent advanced a "particular way" of comparing "identical by descent" regions — lengthy sections of the genome that are "completely or nearly identical"— to determine the degree to which two people are related.

23andMe asserts that its patent infringement claims are not directed at laws of nature, natural phenomena, or abstract ideas, but at methods of identifying, measuring, and comparing these "identical by descent" regions. The methods 23andMe claims Ancestry is infringing involve identifying these “identical by descent” sections and assessing the amount of DNA in them, including calculating the sum of the lengths of these regions and the percentage of shared DNA. Close relatives would share a greater amount of DNA sequence information in these sections compared to distant relations.

In the complaint, 23andMe also accuses Ancestry of making misleading representations about its service in violation of the Lanham Act (the federal law prohibiting trademark infringement and false advertising), and the California Business and Professions Code.

23andMe highlights an online advertisement that "boldly proclaimed" that AncestryDNA tested five times more regions than other DNA tests, but only explained in the fine print that it tested two times more regions than 23andMe. In other AncestryDNA ads, cited by 23andMe in the complaint, no such disclaimer is provided. 23AndMe also takes issue in the complaint with the way Ancestry advertises sales or discounts to its AncestryDNA services.

According to 23andMe, even though these advertising claims are misleading, they are believed by the public, and have even been noted on a genealogist's blog. 23andMe says it informed Ancestry about its concerns and asked it to stop these marketing practices, but the company did not remedy these issues to 23andMe's satisfaction.

"Defendants’ misleading representations are likely to affect purchasing decisions by members of the public because they concern quality or characteristics and price of available DNA tests," 23andMe said in the complaint.

There appears to be an additional legal tussle between the two companies over 23andMe's use of the word "ancestry," which Ancestry has trademarked as a logotype. According to 23andMe, Ancestry has alleged that its use of the term "ancestry" can cause customer confusion and constitutes trademark infringement. 

Ancestry has challenged at least one company, DNA Diagnostic Center, over the use of the term "ancestry," but the parties settled that feud last year.  

23andMe denies it has used the term "ancestry" in a way that infringes the trademark, but also believes that its rival has no legitimate claim to the term. As such, 23andMe has asked the court for declaratory judgment to invalidate the trademark, arguing that the word has become a generic term used by other companies in the field.

23andMe is also seeking damages three times the amount assessed by the court for "willful and deliberate" infringement of its patent. The company is asking the court for a permanent injunction prohibiting Ancestry from making false statements and correcting misrepresentations online, and is seeking profits that Ancestry made as a result of "deceptive, misleading and unfair business practices and advertisements."

An Ancestry spokesperson declined to comment on the lawsuit.