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EPO Revokes Affymetrix Array Patent Following Opposition by Agilent and Others

NEW YORK (GenomeWeb News) — The European Patent Office has revoked an Affymetrix patent covering expression microarrays, Agilent Technologies said today.

Agilent, together with array firms CombiMatrix and Clondiag, filed oppositions to the patent, EP 0853679, nearly nine years ago. The patent is titled "Expression Monitoring by Hybridization to High Density Oligonucleotide Arrays."

Agilent said it opposed the patent because of the broad use of the term "control probe" in connection with gene-expression microarrays. Like Affy, Agilent sells arrays for gene expression profiling. Irvine, Calif.-based CombiMatrix has since shifted its focus to molecular diagnostics, although Agilent manufactures some of its chips. Jena, Germany-based Clondiag, now part of Alere, continues to manufacture arrays for genetic analysis.

An opposition hearing was held in 2006, and the patent's claims were narrowed, but Agilent and Clondiag appealed the decision, claiming Affy's patent was still too broad, and following an appeal hearing held earlier this month, all of the claims in Affy's patent were rejected and revoked in totality, Agilent said.

In a statement, Robert Schueren, Agilent's vice president of genomics, called the decision a "very positive result" for Agilent's expression array customers, and the "entire European gene-expression community," as it "allows customers to continue using established workflows and protocols, including control probes, without having to worry about potential patent infringement."

Affy has sought to enforce the patent in question before. In 2007, it sued Illumina in the US, UK and Germany for infringement of the '679 patent, as well as two others. The suits were later dropped when Illumina agreed to pay Affy $90 million in 2008 as part of a settlement.

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