Affymetrix files more patent infringements against Illumina in U.S. and Europe

Affymetrix Inc. has announced that it has filed additional patent infringement lawsuits against Illumina Inc. in the United States District Court for the District of Delaware, in the U.K. High Court of Justice, Chancery Division, Patents Court and in the German, Düsseldorf Regional Court, Patent Division. Affymetrix is seeking all available remedies, including injunctive relief.

The new suits target technology offered by Solexa, the company acquired by Illumina in January 2007, as well as all of Illumina's BeadArray products. Affymetrix also filed new lawsuits in Germany and the U.K. because the infringing acts extend beyond the U.S. market.

The filings include the following patents:

Patent Number

  Patent Title   ILMN Products Covered
         
5,902,723   Analysis of Surface Immobilized Polymers Utilizing Microfluorescence Detection   Assays, products, and associated instrumentation under the name BeadArray ™ technology, including, but not limited to, the Infinium ® II assay.
6,403,320   Support Bound Probes and Methods of Analysis Using the Same   Products and associated instrumentation under the name BeadArray technology, including, but not limited to, all of Illumina's Sentrix ® Array Matrix and BeadChip arrays, the BeadArray Reader, and the detection instrument used to decode all of Illumina's BeadArray arrays.
6,420,169   Apparatus for Forming Polynucleotides or Polypeptides   Products and associated software and instrumentation under the name Solexa Sequencing technology, including, but not limited to, the Genome Analyzer, Clonal Single Molecule Array technology, and the 1G Genome Analysis System.
6,576,424   Arrays and Methods for Detecting Nucleic Acids   Products and associated instrumentation under the name BeadArray technology, including, but not limited to, BeadArray arrays used with the Infinium ® I and II and Direct Hybridization assays.
7,056,666   Analysis of Surface Immobilized Polymers Utilizing Microfluorescence Detection   Products and associated software and instrumentation under the name Solexa Sequencing technology, including, but not limited to, the Genome Analyzer, Clonal Single Molecule Array technology, and the 1G Genome Analysis System
0834575   Identification of Nucleic Acids in Samples   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina genotyping and gene expression assays.
0853679   Expression Monitoring by Hybridization to High Density Oligonucleotide Arrays   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina gene expression assays.
0799897   Kits and Methods for the Detection of Target Nucleic Acids with the Help of Tag Nucleic Acids   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina GoldenGate ® and DASL ® assays and arrays.

Affymetrix previously sued Illumina for patent infringement in 2004 in the United States District Court for the District of Delaware. In March 2007, the jury returned a verdict in favor of Affymetrix. The jury found that Illumina's arrays, assays, scanners, software and related products infringed on one or more claims of all five of Affymetrix' (5,535,531, 5,795,716, 6,355,432, 6,399,365, and 6,646,243) patents-in-suit. The jury imposed a royalty of 15 percent, and awarded total damages of more than $16.7 million for the period of 2002-2005. After the final judgment, the Court will calculate the additional damages through the date of the final judgment.

The next phase of the trial, which will focus on the validity of Affymetrix ' patents, is scheduled to begin on February 11, 2008. The following phase, expected to occur in May or June 2008, will determine whether Illumina's infringement was willful. Affymetrix has also requested injunctive relief in this case, and will ask that the Court take up this request once the patents are found to be valid.

Affymetrix has developed one of the industry's strongest patent portfolios, featuring more than 400 patents granted in the U.S. and more than 40 patents granted in Europe. The company continues to license its technology under appropriate circumstances to stimulate the broad commercialization of genome analysis technologies.

To view today's filings, please visit: http://investor.affymetrix.com/phoenix.zhtml?c=116408&p=irol-irhome

Affymetrix management will be discussing this litigation during the third quarter operating results conference call at 2:00 p.m. PT on October 24, 2007. The dial-in number for domestic callers will be (866) 500-AFFX and international callers will be (706) 643-2771. To listen to a live webcast of the conference call, please go to the Investor Relations section of the company's website at www.affymetrix.com.

A replay of this call will be available from 5:00 p.m. PT on October 24, 2007 until 8:00 p.m. PT on October 31, 2007 at the following numbers: domestic: (800) 642-1687, international: (706) 645-9291. The passcode for both is 19331218. An archived webcast of the conference call will be available under the Investor Relations section of the Company's website at www.affymetrix.com.

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