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Biotech / Medical : Incyte (INCY) -- Ignore unavailable to you. Want to Upgrade?

To: LLCF who wrote (962)	4/12/1999 11:28:00 AM
From: LLCF	Read Replies (1) \| Respond to of 3202

Then there's this from Bloomberg news: "Glaxo Wellcome Plc, novartis AG, SmithKline Beecham Plc and other top drugmakers are poised to announce a collaboration aimed at mapping variations in human genes as the industry's giants try to find new drugs without paying millions of dollars to small biotechnology companies." The project pits the group against companies such as Genset SA and Incyte Pharmaceuticals Inc. which have made a business of mapping genes for a price. blah blah, Perkin-Elmer, blah, blah While some analysts question how well a massive collaboration of rivals in the $300 Billion industry could work, the prospect of such companies joining forces highlights their thirst for genetic information and their desire to cut costs .... blah, blah..... DAK

To: LLCF who wrote (962)	4/12/1999 2:16:00 PM
From: RCMac	Read Replies (1) \| Respond to of 3202

Affymetrix Provides Update on Litigation Against Incyte (http://biz.yahoo.com/prnews/990412/ca_affymet_2.html ) SANTA CLARA, Calif., April 12 /PRNewswire/ -- Affymetrix, Inc. (Nasdaq: AFFX - news) reported today that the United States Patent and Trademark Office (''PTO'') has issued an ''Order to Show Cause'' in connection with Incyte's request to declare interferences between the narrower claims of Affymetrix' issued United States Patent No. 5,800,992 (the '''992'' patent, relating to ''two color assays'' patent) and to the claims of its United States Patent 5,744,305 (the '''305'' patent, relating to arrays of nucleic acids with more than 400 probes per square centimeter), and a pending patent application licensed to Incyte Parmaceuticals, Inc. (Nasdaq: INCY - news). Vern Norviel, Senior Vice President and General Counsel of Affymetrix stated, ''We welcome the involvement of the Patent Office in clarification of Affymetrix' patent rights, as we originally sought to provoke an interference with the Incyte patent when we filed the application that matured into the '992 patent. We believe that the PTO is well equipped to resolve the matters raised by Incyte and that, following these proceedings, the PTO will have disposed with most, if not all, of Incyte's defenses to our infringement claims against them as to these particular claims.'' Mr. Norviel noted that the PTO's actions also have the following effects: -- Affymetrix' claim against Incyte based on U.S. Patent No. 5,445,934 (the '''934'' patent directed to arrays of nucleic acids with more than 1,000 probes in a square centimeter) was not affected by the interference. Mr. Norviel noted that the PTO specifically rejected one of Incyte's main defenses on the '934 patent, finding that oligonucleotides are polynucleotides; -- As to the '992 two color patent, the broadest claims of this patent (which are infringed by Incyte) are not part of the interference. Incyte has provided no basis for believing that these uninvolved claims are not both valid and infringed; and -- Even as to the particular claims that are involved in the patents, Affymetrix was designated as the senior party. Normally the senior party wins an interference because of the heavy burdens of proof on the junior party. At present, it is not known whether the PTO's action will have any effect on the scheduled hearing of Affymetrix' Motion for a Preliminary Injunction against Incyte, which is set for April 30. The PTO order requires Incyte to produce all evidence it has asserted in support of its motion and then allows Affymetrix to file an opposition to Incyte's request in order to enable the PTO to determine whether Incyte's evidence is sufficient to warrant a finding that Incyte has made a ''prima facie'' showing in support of its interference request. Even as to the few claims that are involved in the interference, the normal interference proceedings will not continue if Affymetrix is able to demonstrate that Incyte's heavy burden of proof has not been met. The PTO order sets forth a timeline for a ruling on these proceedings in late summer 1999, which Affymetrix believes will likely strengthen its patent portfolio. [etc.- boilerplate description and disclaimer]

To: LLCF who wrote (962)	4/12/1999 2:18:00 PM
From: RCMac	Read Replies (1) \| Respond to of 3202

David, A few thoughts about the AFFX v. INCY press release war today. Since I don't know the evidence I don't have an opinion as to who will ultimately prevail in the PTO, but I can spot hype in a press release, and AFFX's release, biz.yahoo.com (reproduced in my prior post) smells pretty dubious to me. A couple of things that AFFX's rhetoric tries to gloss over. First, the order to show cause is the PTO's response to INCY's proceeding commenced against AFFX, not the other way around. This is AFFX spinning defensively (and IMO pretty weakly). Second, the "effects" trumpeted by AFFX's General Counsel are pretty meager: (1) no effect on the '934 patent (although INCY has lost one of its arguments), (2) no effect on the broadest claims of the '992 two color patent (because they're not involved in this proceeding -- but AFFX gratuitously says that INCY infringed them anyway, and that INCY "has provided no basis for believing that these uninvolved claims are not both valid and infringed") and (3) AFFX was named the "senior party." I don't see why INCY, in this proceeding not involving the broader claims of the '992 patent, was expected to address these "uninvolved claims," or why its failure to do so means anything at all. In a formal judicial or administrative proceeding you address the issues in dispute, not issues which are off topic. Maybe the earlier drafts of the AFFX PR seemed skimpy, so they shovelled this in? The "senior party" status means very little - it certainly doesn't mean that AFFX has, but for some minor details, essentially won the interference proceeding, or even that it has a downhill ride to victory. Where there is an apparent conflict between the claims of two patents (the predicate for an interference proceeding), the party who filed its patent application first is the "senior party." But the U.S. patent system is based not on priority of filing, but on priority of invention. The winner of this interference proceeding will be the party that shows that it invented or discovered the subject of the patent, and that showing will be made by the parties in the materials this order requires them to submit. The fact that AFFX filed first gives them a modest procedural advantage - INCY has to present its proofs and arguments first, and has the burden of proof - but this hardly suggests that AFFX has it easy. It will depend on the evidence, not on spin about procedural matters. As for AFFX's statement that "Normally the senior party wins an interference because of the heavy burdens of proof on the junior party", this strikes me as the sort of thing a good lawyer avoids saying in argument because it is so transparently weak and fallacious that it undercuts your own credibility. It may be true statistically that senior parties win more than their opponents, but that statistic is meaningless - whether you win your case depends on the strength and weakness of the parties' cases, not on how all other litigants did on average. (And I have the feeling that INCY wouldn't have started this interference if it didn't think it could win it.) It's also worth remembering that the AFFX fight involves something like 5-6% of INCY's revenues, so that even if INCY lost the whole war it would be harmed only modestly. (INCY's release, which INCY got out first, is at biz.yahoo.com .) --RCM