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Gene Codes Sues New York over 9/11 DNA ID Software; Faces Countersuit

By a GenomeWeb staff reporter

NEW YORK (GenomeWeb News) – Gene Codes is suing New York City alleging it stole trade secrets as part of Gene Codes' work to identify the remains of victims of the terrorist attacks on Sept. 11, 2001.

In a complaint filed in March in the US District Court for the Southern District of New York, Gene Codes, based in Ann Arbor, Mich., alleges New York's Office of Chief Medical Examiner improperly shared proprietary information about its software with the Federal Bureau of Investigation.

In the complaint, Gene Codes said that OCME approached it following the 9/11 attacks in lower Manhattan to develop the software to identify victims of the attacks and to organize the DNA data of the 2,800 victims and 20,000 fragmented remains located at Ground Zero.

OCME had already been using a previously developed software program called Sequencher for the analysis of mitochondrial DNA, Gene Codes said, and added that in order to carry out the 9/11-related tasks it "suspended its existing commercial software research and development activities and devoted all of its efforts and energies to developing a new and groundbreaking system of DNA profile matching technology."

The new software eventually was called Mass-Fatality Identification System, or M-FISys.

Gene Codes was awarded a three-year contract worth $13 million by OCME for developing the software.

After the contract expired, however, OCME infringed on trade secrets associated with M-FISys, Gene Codes alleges, by providing access and information about the software to the FBI, violating the contract it had with OCME, as well as Gene Codes' IP rights.

According to the suit, violations included OCME employees printing out confidential database schema from the M-FISys software "for the purpose of enabling FBI to extract," Gene Codes' trade secrets "in order to develop and enhance the functionality of" CODIS, another software program that was in use by FBI, the company said in its complaint.

Gene Codes is asking for at least $10 million in damages.

New York City is countersuing Gene Codes and is asking that the company's lawsuit be dismissed. It also asks for $10 million in damages.

According to the city, Gene Codes approached OCME in late September 2001 to develop the new software. Under its contract with Gene Codes, the city claims it obtained a "perpetual, royalty-free" license to use the M-FISys software for non-commercial purposes. In exchange, Gene Codes could claim copyright ownership of the software but not commercially exploit the program, New York alleges.

"The creation and development of M-FISys represented a collaborative effort under which OCME provided constant input and feedback to Gene Codes and OCME specified the desired functionalities that were to be incorporated in the program," the city said in its response to Gene Codes' complaint.

While OCME could have claimed joint ownership of the software, the city agreed not to, in part due to Gene Codes' "agreement to commit most of its resources to the project and work at a reduced rate of compensation for its services."

New York City alleges Gene Codes breached its contractual obligations by, among other things, failing to properly train OCME personnel for use of M-FISys; failing to provide upgrades and revisions of the software to OCME after the contract expired as was required; and failing to provide OCME with a version of M-FISys that could generate data in a CODIS format, "although such functionality was specifically requested by OCME and later incorporated in a newer version of M-FISys."

It also alleges that in November 2006, Gene Codes agreed in writing not to file claims against the city for IP violations stemming from its work developing M-FISys for OCME.

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