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Court Allows NanoString, Vizgen to Pursue Antitrust Countersuits Over Church Lab Spatial Patents

NEW YORK – A federal court has issued rulings that will allow NanoString Technologies and Vizgen to advance antitrust claims against 10x Genomics and Harvard University for attempting to monopolize the spatial transcriptomics market.

In an order issued Monday, Judge Matthew Kennelly of the US District Court for the District of Delaware said that NanoString and Vizgen have "plausibly alleged that Harvard promised to offer non-exclusive patent licenses, which NIH accepted by reference to those specific pages of Harvard's grant application. … In short, [they have] sufficiently alleged the existence of a contract between NIH and Harvard requiring Harvard to offer open and non-exclusive licensing agreements for patents funded by the grant."

He allowed claims that 10x and Harvard violated federal and state antitrust regulations to proceed. In addition, he said NanoString's claim of "unclean hands" before the US Patent and Trademark Office can proceed.

However, despite the plausible existence of a contract between Harvard and NIH, Kennelly said neither NanoString nor Vizgen could sue for breach of contract, as they were not third-party beneficiaries of it.

These claims are part of respective countersuits in patent infringement proceedings initiated by 10x last year and based on allegations that Harvard and professor George Church broke a promise to the National Institutes of Health — made in a grant application — to pursue open and nonexclusive licensing for inventions enabled by the funding. The patents at suit were tied to this grant and later exclusively licensed to ReadCoor, a Church lab spinout, which was acquired by 10x in 2020 for $350 million. 

"We're pleased that the court rejected 10x's and Harvard’s attempts to keep these issues surrounding the NIH grant documents and their anticompetitive conduct and effect on the market out of the case," NanoString CEO Brad Gray said in a statement. "This is a significant development and provides NanoString with another avenue for success in the case." NanoString added that it believes the ruling will support the firm's strategy in European patent infringement cases launched by 10x.

In a statement, 10x Chief Legal Officer Eric Whitaker characterized NanoString's statement about the ruling as "misleading." 

In its own statement, Vizgen also said it was "pleased" with the ruling.

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