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Affymetrix Sues Incyte, Synteni, Claiming Infringement on Patent for Microarrays

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SANTA CLARA, Calif.--Affy metrix here has filed suit against Incyte Pharmaceuticals and Synteni, a gene expression microarray company Incyte is acquiring, claiming patent infringement. Filed in US District Court for the District of Delaware earlier this month, the suit contends the companies infringed on a US patent entitled "Array of oligonucleotides on a solid substrate," which is one of over 25 issued patents and 70 pending applications that cover aspects of Affymetrix's proprietary GeneChip technology.

The GeneChip system includes disposable DNA probe arrays containing gene sequences on a chip; reagents for use with the probe arrays; a scanner and other instruments to process the arrays; and software to analyze and manage the genetic information.

The patent in question covers arrays of 1,000 or more different pieces of DNA per square centimeter. Synteni's lead product is the Gene Expres sion Microarray (GEM), which consists of as many as 10,000 genes densely arrayed on a glass surface. When Incyte an nounced the planned acquisition last month, the company said it would use Synteni's technology to make prefabricated microarrays for commercial applications in human, animal, microbial, and plant genomics.

The company also said Synteni's Fremont, Calif., headquarters would become the primary microarray manufacturing site for the combined firms.

Incyte's acquisition of Synteni is scheduled to close this month, giving the companies a total of more than 100 employees in research and development, manufacturing, sales, and support, focused on providing total microarray systems that include DNA chips and databases. "The shared vision of Incyte and Synteni is to provide to customers an integrated system including genetic and expression information within an overall R&D productivity environment," Brook Byers, Synteni's chairman, remarked when the acquisition was announced.

Commenting on the new lawsuit, Stephen Fodor, Affymetrix's president and CEO, said, "Affymetrix and Incyte have been both good partners and good competitors for some time now, and we remain hopeful that we will reach an agreement with Incyte that provides fair compensation to Affymetrix for the use of our intellectual property. We understand that Incyte's database customers have shown increasing interest in getting access to DNA array technology just as our GeneChip customers have shown a growing interest in using GeneChip arrays to build databases. Customers of both companies should expect us to make every effort to provide products that meet their needs, but we believe that it is important for us to make a clear statement regarding protection of our intellectual property.''

Roy Whitfield, Incyte's CEO, responded, "We at Incyte are puzzled by this lawsuit given our ongoing relationship with Affymetrix. Further, as part of Incyte's due diligence relating to the acquisition of Synteni, the Affymetrix patent was reviewed. We believe the Synteni technology is not covered by this patent. Synteni was founded in 1994 and has established a customer base of over 20 pharmaceutical and biotechnology companies, and we understand that in the three and one half years since the Affymetrix patent was issued, Synteni has received no notification of infringement or solicitation of a license from Affymetrix. Since we believe the lawsuit has no merit, we intend to aggressively defend our position and the position of Synteni."

Affymetrix and Incyte currently have a joint venture to commercialize five Affymetrix arrays in the expression monitoring field. Affymetrix has also established a program to license its technology for use in making low- to medium-density spotted arrays for expression monitoring, and has entered into a licensing deal with Molecu lar Dynamics. Meanwhile, Affy metrix itself isn't immune to lawsuits. Last month the genomics company Hyseq filed a patent infringement complaint against Affymetrix relating to a patent Hyseq had just received covering a method for partial DNA sequencing by hybridization of oligonucleotides. In addition, Hyseq has an ongoing lawsuit against Affymetrix that it claims covers Affymetrix's entire product line.

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