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Ariosa, LabCorp File Motion to Dismiss Patent Infringement Suit Filed by Verinata

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Ariosa Diagnostics and the Laboratory Corporation of America have filed a motion to dismiss a patent infringement suit brought by Verinata Health in the US District Court for the Northern District of California.

The motion will be heard on Feb. 22.

Both Ariosa and Verinata have developed sequencing-based noninvasive prenatal tests for fetal aneuploidies. Last May, LabCorp agreed to distribute Ariosa's Harmony Prenatal Test.

Verinata sued Ariosa and LabCorp last October, arguing that the companies infringed on US Patent No. 8,296,076, titled "Noninvasive diagnosis of fetal aneuoploidy by sequencing." In November, it added US Patent No., 8,318,430, titled "Methods of fetal abnormality detection" in an amended complaint. The patents were issued to Stanford University and licensed exclusively to Verinata.

Verinata claims that both Ariosa and LabCorp directly and indirectly infringe on its patents and it also sued for enhanced damages against both Ariosa and LabCorp.

Attorneys for Ariosa and LabCorp have submitted a motion to dismiss the patent infringement claims against LabCorp and a motion to dismiss the claim for enhanced damages against both Ariosa and LabCorp.

According to the motion, "no valid claim for direct or indirect infringement has been (or could be) stated against LabCorp," and "no valid claim for enhanced damages has been (or could be) stated against either Ariosa or LabCorp."

Verinata claims in its suit that Ariosa and LabCorp infringe the patents by "practicing one or more claims of the [asserted] patent by, including without limitation, performing the Harmony Prenatal Test, and will continue to do so, unless and until enjoined by this court."

However, according to the motion from Ariosa and LabCorp, the allegations of infringement are "purposefully obtuse" and do not state specifically how LabCorp "makes, uses or sells," the patented invention.

LabCorp performs a maternal blood draw and then sends the blood to Ariosa to perform the actual test. Because the drawing of blood is not part of the claims of either patent, LabCorp does not infringe, the companies argue.

"Because the patents-in-suit recite only method claims, LabCorp cannot be liable for selling or offering to sell the Harmony Test, even if the Harmony Test were to infringe the patented methods (which it does not)," according to the dismissal motion. "This is because LabCorp itself must use the entire method in order to be a direct infringer."

LabCorp is also not an indirect infringer, the company argues, because LabCorp provides a blood draw, which could have many uses aside from the Harmony Test.

Finally, Ariosa and LabCorp argue that a claim to enhanced damages "requires an allegation of willful infringement."

But, they argue, because Verinata's '076 and '430 patents were issued after Ariosa launched its test, and because Verinata sued Ariosa and LabCorp two days after the '430 patent was issued, "it would be impossible for [Verinata] to allege that defendants had meaningful pre-filing knowledge of the patents-in-suit." Therefore, the "prayer for enhanced damages should be dismissed without leave to amend."

The case is just one of many in the litigious noninvasive prenatal testing space. Aside from the suit involving Verinata and Ariosa, Ariosa and Verinata are each involved in lawsuits against Sequenom. Both companies, along with Natera, are suing Sequenom. Sequenom in turn is suing Verinata, Ariosa, and Natera.

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