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Court of Appeals Sides with Qiagen in HPV Antitrust Case

NEW YORK (GenomeWeb News) – The US Court of Appeals for the Federal Circuit has denied an appeal by Third Wave Technologies, a subsidiary of Hologic, to overturn a decision in favor of Qiagen in an antitrust suit brought by Third Wave related to molecular tests for human papillomavirus.

Third Wave had filed the suit in March 2007 against Digene, which at the time had the only US Food and Drug Administration-cleared molecular assay for HPV. Digene has since been acquired by Qiagen for $1.6 billion.

In addition, Qiagen is no longer the only vendor with a molecular HPV assay on the US market — in March, the FDA cleared for marketing Hologic's two HPV genotyping assays.

Third Wave had alleged in its suit that Digene had "abused its monopoly power to thwart competition" in the HPV diagnostics market.

But in January 2008, the US District Court for the Western District of Wisconsin granted Qiagen summary judgment on the antitrust counterclaims. Judge Barbara B. Crabb ruled that Third Wave had "failed to show any violations" by Qiagen of antitrust laws.

Third Wave subsequently appealed that ruling, but the appellate court denied the appeal, Qiagen said today. According to Qiagen, the court of appeals concurred with the US District Court's ruling that the firm's contracts did not have an anti-competitive effect.

However, the court of appeals also denied Qiagen's patent infringement appeal against Third Wave. Qiagen had alleged that Third Wave's Invader HPV Oligo Mix violated one of Qiagen's exclusive patents.

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