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European Commission Investigating Illumina, Sequenom for Anticompetitive Conduct, Premaitha Says

NEW YORK (GenomeWeb) – UK-based Premaitha Health said this week that the European Commission's competition department is investigating Illumina and Sequenom for potential anticompetitive conduct regarding their noninvasive prenatal testing patents.

Premaitha, based in Manchester, said that during a case management conference held in the UK last Friday in conjunction with its ongoing litigation with Illumina on NIPT-related intellectual property, it told the English Court that the European Commission had contacted it about an investigation the commission had opened into Illumina's and Sequenom's conduct.

Premaitha said it understands that the commission is investigating whether the creation of Illumina's and Sequenom's patent pool agreement in 2014 and its actions since then infringe articles 101 and 102 of EU competition law, which prohibit restrictive agreements and the abuse of a dominant position, respectively. In addition, Premaitha said, it believes that the commission is looking into Illumina's licensing practices and whether they raise competition law concerns.

Also at the case management conference, the court ordered that after the patent hearings in the ongoing dispute, scheduled for July 2017, it would consider Premaitha's competition law defense. At that point, the court said, it would have more certainty on the validity of the technical claims and on the investigation by the European Commission. Premaitha had asked the court in April to include an antitrust claim in its defense.

The court also ordered Illumina to provide an unredacted copy of the pooled patents agreement between Illumina and Sequenom to Premaitha, saying that the document would "shed some light on the competition arguments that are being raised."

Premaitha CEO Stephen Little said in a statement that he is pleased by the European Commission's investigation and the court's consideration of its competition law defense. "We brought this conduct to their attention and will actively cooperate with these investigations to shine a light on what we believe is a pernicious strategy to buy up intellectual property in the sector, and then to use this combined patent pool and aggressive legal actions to stop developers of alternative genetic/sequencing technology, thereby suppressing competition and ultimately restricting patient choice," he said.

Little said that if Illumina or Sequenom are found to be violating European competition rules, the European Commission could impose licensing terms as well as fines of up to 10 percent of each company's revenue.

Also, he said, the English courts could impose licenses "on a fair, reasonable, and non-discriminatory basis" for any patent claim Premaitha is found to infringe, adding that the company denies any infringement.

Illumina declined to comment, citing its policy not to comment on pending litigation.

Illumina first sued Premaitha in March of 2015, alleging that it infringes two of its patents. This January, it added a suit against three companies in the UK  offering NIPT — The Doctors Laboratory, TDL Genetics, and Roche-owned Ariosa Diagnostics. In parallel, it sued two Polish customers of Premaitha over their use of another one of its patents. In April, Illumina filed another suit, against Swiss NIPT testing firm and Premaitha customer Genoma.

Also that month, a UK court decided that a combined trial on the three patents should be held in 2017.