The withdrawal of European Patent No. 872562 represents a stumbling block for Applera, which is on a global effort to enforce its intellectual property in instrumentation used for real-time PCR.
In November, Applera received a US patent covering its real-time PCR instrumentation, and then filed suit on Bio-Rad, Bio-Rad subsidiary MJ Research, and Stratagene for allegedly infringing the patent.
Ana Kapor, manager of investor relations at Applied Biosystems, an operating group of Applera told DrugResearcher.com: "The EPO found the patent to lack novelty in view of an unpublished research report."
Applera maintains the report is not an admissible reference because it was not "published" and the reference does not disclose the claimed invention.
"The decision was based in part on the testimony of a live witness; a very unusual procedure," Kapor added.
In June, ABI obtained injunctions from a German court that enjoined Bio-Rad Laboratories, MJ Research, and Biozym, an MJ Research distributor in Germany, from manufacturing and selling thermal cyclers for real-time PCR. The court found that the defendants infringed a German patent corresponding to European Patent No. 872562, issued to ABI's parent company Applera in September 2002.
Applera's US and Japanese real-time thermal cycler patents remain in place. The company plan to appeal against the decision in a process that is expected to take 1-2 years.