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Appeals Court Dismisses Illumina Patent Lawsuit Against Affymetrix

NEW YORK (GenomeWeb News) – The US Court of Appeals for the Federal Circuit has affirmed the dismissal of lawsuits filed by Illumina against Affymetrix alleging patent infringement, Affy announced today.

The Court of Appeals affirmed the decision by the US District Court for the Western District of Wisconsin, which in December granted summary judgment to Affy in cases involving US Patent numbers 7,510,841 and 7,612,020 and dismissed the cases.

The patents pertain to sensor compositions compositions "comprising a composite array of individual arrays" for processing a number of samples simultaneously, according to the patent abstracts.

Illumina filed separate lawsuits against Affy in 2009 saying a number of products from the Santa Clara, Calif.-based firm infringed on the two patents.

In the December decision, Judge Barbara Crabb based her ruling on the fact that Affy's GeneChip and GeneTitan products, which were the subject of Illumina's lawsuits, do not include a substrate and so cannot infringe on the patents in dispute.

Both Affy and Illumina agreed that the patent claims require a substrate , which Crabb defined as "a material that can be modified to contain discrete individual sites appropriate for the attachment or association of beads and is amenable to at least one detection method."

The GeneChip and GeneTitan products do not rely on beads, however, and a witness for Affy testified that modifying them for the use of beads would destroy the arrays.

Illumina did not dispute that testimony, but argued that the substrate needs only to be modifiable to have a bead but does not have to be modified, and although modification could destroy Affy's array products, it did not mean that they lack a second substrate.

Crabb discounted that reasoning in her decision, saying it made no sense.

"As we said at the outset of this process we are committed to conducting our business with the utmost integrity and believe the ruling of both the District Court and the Court of Appeals underscore this commitment," Rick Runkel, Affy's executive vice president, general counsel, and secretary, said in a statement.

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