Affymetrix wins round one against Illumina

The case, originally filed in July 2004, regards the claimed infringement of five of Affymetrix' patents by Illumina's arrays, scanners, software and related products. The jury found that the products infringed one or more of the patents and awarded total damages of more than $16m (€12m) at a royalty rate of 15 per cent for the period of 2002 to 2005. "We respect the United States judicial process and are gratified with the jury's decision. This ruling recognises Affymetrix' patent portfolio and the value of our licensing program,"​ said Kevin King executive vice president at Affymetrix. "We have always believed, and continue to believe, in the strength of our intellectual property. We remain confident of our position in the next phases of the trial." ​​According to Jay Flatley, CEO of Illumina, Illumina will appeal the present finding of infringement and notes that the finding was made without consideration of the validity and enforceability of Affymetrix' patents. "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,"​ said Flatley. In a pre-trial order in February 2007, the court explained that it would address Illumina's defences of invalidity and enforceability of the patents as well as the company's claims for unfair competition and antitrust violations, in subsequent trials. "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,"​ said Flatley.​​"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."​