RC, Great post on the patent issues. Keep us posted on what you find.
From the INCY press release dated Thursday January 14, 12:39 pm Eastern Time:
biz.yahoo.com
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Incyte Announces Allowance of Two-Color Hybridization Claims And
Recommendation by PTO to Declare an Interference Proceeding
Against Affymetrix
In September of 1998, Affymetrix filed for a preliminary injunction against Incyte alleging infringement of the '992 patent, which contains the overlapping
claims. If declared, the interference would involve Incyte's two-color hybridization claims and claims of Affymetrix' '992 patent. The overlapping claims
were copied in 1996 by Affymetrix from a published European application licensed exclusively to Incyte, as admitted in documents filed by Affymetrix as
part of the preliminary injunction request.
''We believe that Affymetrix is not entitled to ownership of the two-color hybridization claims that were copied from Incyte's European application and
which are the subject Affymetrix' preliminary injunction motion against Incyte,'' said Lee Bendekgey, General Counsel at Incyte. ''We are confident that a
thorough review by the PTO will result in a determination of proper ownership.''
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From reading this, it seems like AFFX swiped what became property that INCY licensed. I think that AFFX will not get a preliminary injunction and that as they look down the road at an ugly patent battle that neither side can fully win that AFFX will become more reasonable and be willing to work out a deal with INCY to settle. I am convinced that each company needs some of what the other has and that each company has legitimate claims that could stop the other from marketing their products. But, I think that AFFX figure they need to get through this first step in the process that they got rolling in the first place. This could have more to do with management egos and decisions made a long time ago than with the merits of the case.
I think that AFFX is pissed off at INCY because INCY had a collaborative deal going with AFFX, and AFFX had their hopes set on using INCY's dbases and gene collections to develop their chips and then INCY went and double crossed them by buying Synteni and going into competition with AFFX, leaving AFFX with a big hole in their DNA sources and an even bigger chip on their shoulders. Why did AFFX not sue Synteni about IP theft until after they were bought by INCY??? AFFX has solved their DNA source problem by dealing with other companies, but I think the bad blood remains and they figure a nice legal battle that casts a cloud over INCY is a fitting way to express their disdain. I think that Synteni has a better technology that will be more useful and economical than the AFFX technology, but I still believe that each will be useful and have their niches.
Hopefully reason will take over and egos and emotions will cool. Proving that IP was stolen is not exactly an easy thing to do and has been a constant claim that is typically shot down through out the history of Silicon Valley. Neither company needs this kind of negative drag and confusion. INCY is a licensing company, I think they are more than willing to deal. I really think it is AFFX who is dragging this out. I'd love to see a judge stick it to AFFX and bring them to the bargaining table. The one real issue in INCY's favor is that AFFX is really a one trick pony, they are dependent on DNA chips, while INCY is a much more diversified company, with only a very small amount of their current revenue coming from chips. If AFFX gets an inkling that they need to have a cross licensing deal or they can't operate they will be hot to do a deal.
Rman
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