BioCentury on BioBusiness,
The judge smells a scheme
Monday, April 10, 2000
Oxford Gene v. Affymetrix
OXFORD - Now that an English court has ruled that Affymetrix Inc. has no rights to array technology patents owned by Oxford Gene Technology Ltd., AFFX will have to find ways to reduce its vulnerability in the U.S., where the next round in its battle with Oxford Gene will be bound by British law.
English High Court Justice Sir Robin Jacob ruled on Friday that AFFX was not entitled to use intellectual property owned by Oxford Gene, which AFFX thought it had acquired through a series of deals with Beckman Coulter Inc. (see BioCentury Extra, Friday April 7).
The intellectual property covers claims for a device and method for analyzing a known or unknown polynucleotide sequence involving a support, such as a glass slide, that carries an array of oligonucleotides. The technology was invented by Ed Southern, founder of Oxford Gene.
Jacob basically concluded that AFFX masked its ulterior motive - obtaining the rights to Oxford Gene's patents - with the thin veil of a business consortium with Beckman, which had obtained rights to the technology in 1991 from the University of Oxford.
The risk for AFFX now is that its ability to use the technology in the U.S. rests on the Delaware court where the next round of the patent infringement battle will take place. Although both sides have agreed to be governed by English law, AFFX believes that the different rules in U.S. courtrooms will allow it to present more evidence than it was able to in the U.K.
In addition, AFFX (Santa Clara, Calif.) is holding out hope that the judgment will be reversed in the English Court of Appeal. "We still feel strongly that we have a license to the intellectual property covering Ed Southern's array technology," said Vern Norviel, senior vice president and general counsel for AFFX. "We acquired the license when we acquired Beckman's array business. We believe the license was transferable with the business."
However, according to independent patent attorneys, continued setbacks could force AFFX to argue that it is not infringing the patents it sought, or to win an argument that Oxford Gene's U.S. patent is invalid.
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