The US District Court for the District of Delaware last week
gave judgement in a patent infringement action brought by UK
company Oxford Gene Technology Limited against a US rival,
Affymetrix Inc. A jury of eight decided that process used by the US
company for making and using its so-called GeneChip arrays
infringes a patent of Oxford Gene Technology that simplifies
analysis of genetic material.
The US Court upheld a ruling of the English Court of Appeal
delivered the previous week that Affymetrix has a licence under
Oxford’s patent valid from 1st June 1999 by virtue of its purchase
at that time of another biotech business which was a licensee of
Oxford.
Oxford is seeking to appeal that ruling to the House of Lords.
If the House of Lords reverses the Court of Appeal's decision, the
US court will apply the new ruling, so that Affymetrix's
infringement will be continuing.
The present position is that Oxford can claim substantial
damages for the period up until 1st June 1999 when the licence was
deemed transferred to Affymetrix. If the licence is upheld, the
latest US court ruling means that Affymetrix will be liable for 10%
royalties on their entire future sales of the infringing
products.
Affymetrix is bringing a separate action which claims that
Oxford’s patent is invalid. If it fails to win this, there will be
another jury trial in the US to determine Oxford’s damages
claim.
