Illumina Announces Outcome of First Phase of Its Patent Litigation against Affymetrix
"We disagree with and plan to appeal the present finding of infringement in this lawsuit, and note that this finding was made without consideration of the validity and enforceability of any of the patents asserted by Affymetrix. That infringement finding is therefore preliminary. With respect to damages, Illumina notes that the jury rejected Affymetrix's request for lost profits, and awarded less than half of the total damages sought by Affymetrix in this trial.
"The case will now proceed to the next phases during which we will have the opportunity to demonstrate that the jury's infringement verdict should not stand because these claims are invalid and unenforceable. In the meantime, we will continue to sell the products that are the subject of this suit and no damages will be payable to Affymetrix until all appropriate appeals have been taken.
"Like many other companies, we respect the valid and enforceable intellectual property rights of others. Consistent with our policy, we believe that we acted properly with respect to these Affymetrix patents and that, ultimately, our position will be vindicated. In the meantime, we will continue to defend and support our customers against Affymetrix's unfounded claims, and are currently engaged in other proceedings against Affymetrix both at the U.S. and European Patent Offices to ensure that Illumina's patent rights prevail and to limit Affymetrix's overly broad approach to patent protection."
The federal jury ordered Illumina to pay approximately $16.7 million in damages to Affymetrix based on a royalty of 15 percent for certain products launched before and sold by Illumina through 2005. In July 2004, Affymetrix brought this suit against Illumina in front of Judge Joseph J. Farnan of the U.S. District Court for Delaware. Affymetrix accused Illumina of infringing U.S. Patent Nos. 6,646,243 (the '243 patent), 6,355,432 (the '432 patent), 5,545,531 (the '531 patent), 6,399,365 (the '365 patent) and 5,795,716 (the '716 patent). In a February 2007 pre-trial order, the Court explained that it had decided to address Illumina's defenses of invalidity and enforceability of the patents-in-suit, as well as Illumina's claims for unfair competition and antitrust violations, in subsequent trials. We believe these subsequent trials will confirm the strong invalidity and unenforceability positions we have taken throughout this case with respect to all of the patents asserted by Affymetrix, and that our invalidity and unenforceability defenses to all of these Affymetrix patents were strengthened by the Court's August 2006 rulings on claim construction.
"We continue to feel very strongly about our position that Affymetrix' allegations are without merit and we look forward to presenting our invalidity defenses, in addition to our counterclaims including Affymetrix' inequitable conduct in this case, and ultimately to obtaining favorable results to that effect," said Jay Flatley, Illumina's CEO.
Illumina (www.illumina.com) is developing next-generation tools for the large-scale analysis of genetic variation and function. The Company's proprietary BeadArray technology -- now used in leading genomics centers around the world -- provides the throughput, cost effectiveness and flexibility necessary to enable researchers in the life sciences and pharmaceutical industries to perform the billions of tests necessary to extract medically valuable information from advances in genomics and proteomics. This information will help pave the way to personalized medicine by correlating genetic variation and gene function with particular disease states, enhancing drug discovery, allowing diseases to be detected earlier and, more specifically, permitting better choices of drugs for individual patients. On January 26, 2007, the Company acquired Solexa, Inc. With this acquisition, Illumina is now commercializing the Illumina Genome Analyzer, which is being used to perform a range of analyses including whole genome resequencing, gene expression analysis and small RNA analysis.
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of 1995: this release may contain forward-looking statements that involve risks and uncertainties. Among the important factors that could cause actual results to differ materially from those in any forward-looking statements are the costs and outcome of Illumina's litigation with Affymetrix, our ability to effectively integrate our recent acquisition of Solexa, Inc., Illumina's ability to further develop and commercialize its BeadArray technologies and to deploy new gene expression and genotyping products and applications for its platform technology, Illumina's ability to manufacture robust Sentrix(R) arrays and Oligator(R) oligonucleotides, Illumina's ability to scale and integrate CyVera technology, Illumina's ability to further scale oligo synthesis output and technology to satisfy market demand derived from the Company's collaboration with Invitrogen, and other factors detailed in the Company's filings with the Securities and Exchange Commission including its recent filings on Forms 10-K and 10-Q or in information disclosed in public conference calls, the date and time of which are released beforehand. Illumina disclaims any intent or obligation to update these forward-looking statements beyond the date of this release.
Posted: March 2007
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