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A jury of eight in the U.S. District Court for the District of Delaware Nov. 17 decided that Affymetrix Inc. violated an Oxford Gene Technology Ltd. patent for a process involving an improved analysis of genetic information. The jury found that there was no literal or willful infringement of Oxford’s patent, but decided there was infringement under the doctrine of equivalents, which means that Affymetrix’s process was similar to OGT’s, according to Affymetrix. Affymetrix officials also reported that the court has several motions under consideration that, if granted, would eliminate the finding of infringement under the doctrine of equivalents. No damages have been awarded yet in the patent dispute. The next step, according to Affymetrix, is for federal Judge Joseph Farnan to hold a second jury trial on Affymetrix’s claim that the patent is invalid. “We will now proceed to challenge the validity of the patent as well as other issues including patent misuse, fraud and antitrust violations arising from OGT’s relationship with certain Affymetrix competitors,” Vern Norviel, senior vice president and general counsel of Affymetrix, said in a statement. If Santa Clara, Calif.-based Affymetrix loses the second trial, a third jury trial will decide Oxford’s claim that a maximum of $40 million in damages is owed the United Kingdom-based company. Norviel noted that the federal court confirmed that Affymetrix holds a valid license to the Oxford patent. “It is important to note that because the jury found Affymetrix’ actions were not willful and the court held Affymetrix holds a valid license, any potential financial exposure is substantially reduced,” Norviel said. “On the other hand, if the patent is found invalid or unenforceable, Affymetrix may be relieved of obligations to pay royalties to OGT.” The U.S. court upheld the ruling of the English Court of Appeal delivered two weeks ago that Affymetrix has a license under OGT’s patent from no earlier than June 1, 1999, by virtue of its purchase of another company, OGT said in a statement. If OGT wins a reversal of that decision on appeal, the Delaware court will adopt the new ruling, the company stated. A victory by OGT on appeal would make Affymetrix’s infringement continuing. “The present position is that OGT can claim substantial damages for the period up until the license was transferred to Affymetrix,” the company said. Affymetrix is a leader in developing and commercializing systems to acquire, analyze and manage complex genetic information in order to improve the quality of life.

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