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Thermo Fisher, Agilent Sued for Alleged False Patent Marking

By a GenomeWeb staff reporter

NEW YORK (GenomeWeb News) — Tex Pat has filed separate lawsuits accusing Thermo Fisher Scientific and Agilent Technologies of false patent marking.

Both lawsuits were filed led yesterday in US District Court for the Eastern District of Texas, Texarkana Division, and accuses both Thermo Fisher and Agilent of continuing to mark expired patents on its products, which harms their competitors, as well as the general public, including Tex Pat, it said in its complaints.

The lawsuit against Thermo Fisher alleges it and certain of its subsidiaries of continuing to falsely mark five patents on its products. The patents are: 4,215,993, titled "Precipitating reagent and method for isolation and determination of high density lipoproteins in human serum; D334,208, titled "Portable printer;" D346,753 "PH and concentration meter;" 4,646,338 "Modular portable X-ray source with integral generator;" and 4,760,253 "Mass spectrometer."

According to the lawsuit, the '993 patent expired at the very latest Dec. 4, 1998, the '208 patent expired no later than March 23, 2007, and the '753 patent no later than May 10, 2008.

The '338 patent expired on Feb. 24, 2004 at the latest, and the '253 patent on Jan. 29 at the latest.

In the case of Tex Pat's lawsuit against Agilent, three patents are covered: 3,282,330 titled "Diffusion pump safety control'" 3,363,830 "Diffusion pump;" and 4,341,470 "Atomic absorption spectroscopy."

In its complaint, Houston-based Tex Pat said that the '330 patent expired no later than Nov. 4, 1984, while patent '830 expired no later than March 11, 1985.

The, '470 patent expired at the latest July 27, 1999.

The lawsuit also names Varian, which Agilent acquired in the spring, as a defendant.

Agilent and Thermo Fisher declined comment.

When a patent expires, all future rights in the patents also expire, yet Tex Pat accuses both Thermo Fisher and Agilent of continuing to "mark upon, affix to, and/or use in advertising" the patents in question on their products, "with intent to deceive the public."

As a result, Thermo Fisher and Agilent have "injured the United States Government, including its sovereign interest, and [Agilent's] existent and potential competitors, as well as the general public," including Tex Pat.

Tex Pat is asking the court to issue injunctions against both companies preventing them from continuing to falsely mark its products. It also requests the court award civil fines in the amount of $500 or an alternative amount to be set by the court, for each falsely marked item. The US would receive half of any such award.

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