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Federal Court Dismisses Illumina Patent Infringement Suit against Affymetrix

By a GenomeWeb staff reporter

NEW YORK (GenomeWeb News) – A US federal court has dismissed Illumina lawsuits alleging Affymetrix infringes on patents covering array technologies.

In a decision handed down on Tuesday, Judge Barbara Crabb of the US District Court for the Western District of Wisconsin granted summary judgment for Santa Clara, Calif.-based Affymetrix, saying the company does not infringe on US Patent numbers 7,510,841 and 7,612,020 and dismissed the cases.

In 2009, Illumina filed separate lawsuits against Affy alleging a variety of its products infringe on the '841 patent as well as the '020 patent.

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

In her decision, Crabb pointed to the fact that Affy's GeneChip and GeneTitan products — the subjects 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."

Affy's array products in dispute, however, do not rely on beads, and its expert witness had testified that modifying the products so that beads can be used would, in fact, destroy the arrays.

Illumina did not dispute the testimony of Affy's witness, Crabb wrote in her decision, and added that although Illumina's own expert witness testified that glass can be modified to allow for the use of beads, he did not say whether any of Affy's glass wafers on which its arrays are constructed can be modified to have a bead.

Illumina had argued that the substrate needs only to be able to be modified to have a bead, but does not actually need to be modified. Although modification may destroy the array that does not mean Affy's product lacks a second substrate, the San Diego-based company said.

That argument, Crabb determined, makes no sense. "If the accused products become inoperable when they are modified to allow the use of beads, then those products will no longer be able to satisfy the other elements of the asserted claims. Thus, for the purpose of the '841 and '020 patents, [Affy's] products cannot be 'modified to contain discrete individual sites appropriate for the attachment or association of beads,'" she wrote in granting the summary judgment.

In a statement, Rick Runkel, Affymetrix's executive vice president, secretary, and general counsel, said that the decision by the court affirms the company's position that the lawsuits were without merit.

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