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With USPTO Re-Exam Over, ExonHit and Jivan Likely to Resume Splice-Array Litigation

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By Justin Petrone

The United States Patent and Trademark Office has concluded its reexamination of a patent held by ExonHit Therapeutics that is central to an ongoing IP infringement lawsuit involving rival splice array vendor Jivan Biologics, ExonHit said this week.

The firm said the conclusion of the reexamination paves the way for the resumption of the case between the two firms, both of which sell splice variant arrays and services.

Paris-based ExonHit sued Larkspur, Calif.-based Jivan in 2007 for infringing US Patent No. 6,881,571, "Qualitative differential screening." The patent describes a method for screening for qualitative differences associated with alternative splicing events or insertions located in nucleic acid regions.

Jivan filed a request for a patent reexamination in 2008, alleging that ExonHit did not cite prior art for the patent in question. The court stayed the litigation pending the outcome of the patent reexamination (see BAN 5/27/2008).

ExonHit is seeking damages related to infringement as well as a "reasonable royalty rate." Jivan has denied the allegations.

According to ExonHit, the USPTO has now issued a reexamination certificate for its patent, allowing all claims in the IP, after the company made "clarifying amendments" for two of the claims.

ExonHit said in a statement that the "California litigation may resume and the case be disposed of by the Court."

Loïc Maurel, president of ExonHit's management board, said in a statement that the decision "strengthens ExonHit’s IP position" in the US. ExonHit holds an equivalent European patent that was granted by the European Patent Office without opposition, he said.

Jonathan Bingham, Jivan's chief technology officer, told BioArray News last year that the litigation "doesn’t make a big difference" for Jivan’s business. "With all arguments they are making, we can still have our product line," he said. "If their patent is valid, then we still can sell our product line and if not, well, we can as well."

Bingham said at the time that the firm had previously considered a settlement, but that an agreement between the two companies could not be reached.

Founded in 1997, ExonHit launched its SpliceArray line in 2005. Since then, it has introduced SpliceArray microarrays covering the human, mouse and rat genomes as both catalog and custom products and via a service. ExonHit's catalog chips are manufactured on the Affymetrix GeneChip platform. Custom arrays are also available on both the Affymetrix and the Agilent Technologies platforms, according to the firm.

Jivan, meantime, began offering alternative splicing arrays in 2005. The firm's chips are manufactured by Roche NimbleGen and Agilent. In addition to offering a family of alternative splicing arrays, Jivan has in recent years positioned itself as a bioinformatics provider. In 2007, the firm launched mRNA Magic, a software tool for analyzing mRNA transcriptome sequencing data as well as expression data from qPCR and microarrays.

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