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Affy, Life Tech, Sigma Named in False Patent Marking Suit

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By Justin Petrone

Affymetrix, Life Technologies, and Sigma-Aldrich have all been accused of citing expired patents in their advertising and product literature, a new suit alleges.

According to court documents obtained by BioArray News, Harold Josephs, a "licensed professional engineer," initially sued Sigma in February for falsely marking its products and expanded the suit last month to include Affy and Life Tech.

In the complaint, filed in the US District Court for the Eastern District of Michigan, it is alleged that the three life science tool firms knowingly marked their products as being protected by expired patents.

The purpose of the action is to "act in the public interest to enforce the policy underlying the false marking statute," the suit states. The case is being pursued under a US patent marking statute that compels companies to "insure that the public has accurate information on the existence of patent rights in articles."

Josephs is seeking a determination that the three life science firms "deceived the public" by falsely marking their products; a fine for "an amount which is reasonable in light of the total revenue and gross profit derived from the sale of falsely marked goods and the degree of intent to falsely mark which is proven, with half of the fine going to the use of the United States and the other half going to Josephs"; an order enjoining the companies from "committing new acts of false patent marking and to cease all existing acts"; an award to Josephs that covers the costs of bringing the action; and attorneys' fees.

In the suit, Josephs alleges that Affy makes and sells at least two products that it marks in advertising and product literature with a number of patents that are expired. The named products are Mn Buffer and Sequenase DNA Polymerase. Both are used in the firm's manual USB DNA sequencing kits.

In the case of the Mn Buffer, Joseph alleges that Affy advertises the reagent as being suitable for use under US Patent numbers 4,795,699; 4,962,020; and 4,994,372; all of which he claims have expired. Josephs alleges that the Sequenase DNA Polymerase is being marketed as suitable for use under US Patent numbers 4,795,699; 4,946,786; 4,942,130; 4,962,020; and 4,994,372, which he argues have also expired. These instances of false marking are "merely representative and not exhaustive," it is stated in the suit.

Life Tech products named in the suit include its Amino Allyl MessageAmp II RNA Amplification Kits with CyDyes, and Silencer siRNA Labeling Kit-Cy3, which is being advertised on the firm's website with references to expired patents, Josephs states.

Examples of products sold by Sigma that are allegedly falsely marked include the company's FLAG protein purification products and GenomePlex whole-genome amplification products. Altogether, there are over 200 products on the Sigma web site that are "falsely marked with expired patent numbers," it is stated in the suit.

According to the plaintiff, Affy, Life Tech, and Sigma "did not have, and could not have had, a reasonable belief that [their] products were properly marked in light of the extensive pattern of marking expired patent numbers on [their] product advertising."

He alleges that the companies "knew, or should have known, that many of the patents marked on [their] product advertising in [their] online catalog had expired," and that their "extensive pattern [of] false patent marking in [their] product advertising, coupled with [their] intended purpose in deceiving the public, is injurious to the public."

None of the three life sciences companies have publicly discussed the suit. Josephs in February filed a similar suit against Ontario-based Federal-Mogul for falsely marking automotive wiper blades with expired patents.

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