Rick,
>>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.<< AFFX admitted it copied the overlapping claims??? I'd overlooked this in the January press release.
You ask >>How does AFFX's admission that they copied these claims play into this???<<
Unless I'm missing something, this should be the ballgame.
If AFFX copied the claims from the INCY-licensed patent, then AFFX wasn't the first to "invent" the subject of the patent, INCY's licensor was, and therefore INCY, not AFFX, wins the interference. As INCY's GC says in the release: " . . .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.''
But this conclusion makes me nervous, because it seems too simple. If AFFX has admitted facts that wholly undermine its case, why is it carrying on with a case it has to lose, with the expense and the punishment its stock will take when it finally loses? And why is it being so bumptious, in the dispute generally and in this morning's press release?
If this AFFX "admission" is as flat and unambiguous as INCY's Jan. 14 press release makes it sound, AFFX is acting desperately or irrationally in flailing on rather than settling (or, a distinct possibility, there is some wrinkle of patent law here that has escaped me). And if the admission is so clear, with the consequence that INCY will surely win, INCY has less incentive to settle than if the issues were dicier.
I suppose another possibility is that the "admission" language of the INCY PR refers to an AFFX contention that AFFX in fact was the first to invent the subject of the patent, but in describing it some shortsighted employee or agent used some language found in the European patent application INCY cites, and the INCY PR misleadingly makes too much of this (which seems out of character for INCY). I can't know without seeing the actual language of the interrogatories and other discovery materials in the litigation.
-- Bob |
