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Judge Dismisses Lawsuit Accusing Illumina, Affymetrix of Fraud, Theft of Trade Secrets

NEW YORK – A federal judge has shut down a lawsuit that alleged a wide-ranging conspiracy to steal and profit off technology used in DNA microarrays.

In 2018, three researchers led by Monib Zirvi, an instructor at Weill Cornell Medicine, filed suit against Illumina, Applied Biosystems (now part of Thermo Fisher Scientific), Affymetrix, and certain individuals in the genomics industry, alleging they had stolen trade secrets, committed racketeering, submitted false and misleading patent applications, and breached fiduciary duties, among other allegations.

On Tuesday, Judge John Koeltl of the US District Court for the Southern District of New York granted defendants' motion to dismiss the case in its entirety. Moreover, "because the plaintiffs have amended the complaint twice before, and because further amendments would be futile, the complaint is dismissed with prejudice," he wrote, meaning the plaintiffs will not be able to raise the case again.

"We are pleased with the outcome," Illumina said in an email.

Matthew Lubin, previously director of medical genetics at Strang Cancer Prevention Center in New York, and Maria Kempe of Sweden's Lund University, were the other plaintiffs. Individuals named as defendants included former Illumina CEO Jay Flatley, Harvard University Professor and Illumina Cofounder David Walt, and Affymetrix Cofounder Stephen Fodor.

The suit alleged that in 1994, Fodor stole ideas for array technology from a grant proposal submitted to the National Cancer Institute by Zirvi's doctoral supervisor Francis Barany and passed those ideas on to individuals at Affymetrix to patent. Fodor, then Affymetrix's CTO, was a grant peer reviewer for NCI. The plaintiffs also alleged that Illumina misappropriated so-called "zip code sequence technology" and submitted patent applications for it.

In 2010, Cornell University sued Illumina for patent infringement. The parties settled in 2017, but soon after, Cornell made moves to rescind the settlement.

The Zirvi case included both federal and state statutes. Koeltl wrote that the statutes of limitations have "long since passed" for the federal claims. Other claims under federal or New York state law should also be dismissed, he added, for a variety of reasons, including failures to state a claim.

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