This article has been updated with a comment from BGI's subsidiary Complete Genomics.
NEW YORK – BGI and its subsidiaries MGI and Complete Genomics have sued Illumina for violation of federal antitrust and California unfair competition laws, claiming that Illumina used "fraudulent behavior" to obtain or enforce three sequencing patents that it has asserted against BGI, preventing that firm from entering the US market with its CoolMPS sequencing technology.
In a complaint filed with the US District Court for the Northern District of California, San Francisco division, the plaintiffs wrote that Illumina fraudulently obtained two of the patents, US Patent Nos. 7,541,444 and 7,771,973, by concealing a reference from the patent office that they say Illumina scientists "copied and plagiarized." Had the patent examiner been aware of that reference, they wrote, he would not have allowed the claim that Illumina has asserted against BGI's CoolMPS technology.
For the third patent, US Patent No. 10,480,025, there is "no reasonably objective or subjective basis" on which Illumina can claim that the CoolMPS technology infringes it, they wrote, claiming that it is different from the technology described in the patent.
"Through this fraud and baseless patent litigation, Illumina obtained a preliminary injunction, which harmed plaintiffs and consumers by preventing plaintiffs from even introducing competition (CoolMPS) into the US market," they wrote.
Last June, a US federal court granted Illumina a preliminary injunction against BGI and its subsidiaries, preventing the distribution of both BGI's standard MPS chemistry and its newer CoolMPS chemistry in the US. The injunction related to two patent lawsuits Illumina had brought against BGI, alleging infringement of the '444, '973, and '025 patents, as well as two other patents, US Patent Nos. 7,566,537 and 9,410,200.
In their new complaint, BGI and co-plaintiffs are asking the court for a judgment that Illumina violates the Sherman Act, an antitrust law, and a California business and professions code; a preliminary injunction prohibiting Illumina from maintaining its preliminary injunction against the introduction of CoolMPS products in the US; a permanent injunction prohibiting Illumina from maintaining its patent lawsuits against CoolMPS products; treble damages; and additional relief.
"BGI’s newly filed antitrust complaint is a baseless attempt to distract from its blatant copying of Illumina’s technology," an Illumina spokesperson said in an email. "Illumina welcomes fair competition, but it also expects companies to respect Illumina’s hard-earned groundbreaking intellectual property. We look forward to addressing BGI’s claims in court.”
The new lawsuit "recycles meritless arguments" against the validity of Illumina’s patents, according to the spokesperson, that have been rejected repeatedly by US courts, the US Patent Office, and others. In addition, courts in the US, Finland, Germany, Spain, and Sweden have issued injunctions against BGI, "all finding these and related patents valid and likely infringed by BGI, including by its 'CoolMPS' chemistry," she wrote.
Complete Genomics, through a BGI spokesperson, said that it "opposes using abusive patent litigation to maintain a monopoly and suppress technological development in the NGS field" and "advocates fair competition and an open environment for innovation."
"We believe that the justice system in the United States is fair and impartial and we are expecting a fair and reasonable trial result," Complete Genomics said.