Affymetrix litigation with Illumina gets Markman order

By Elaine Rigoli

Tampa, Fla., Aug. 18 - Affymetrix, Inc. said Friday that District Court judge Joseph J. Farnan of the U.S. District Court for the District of Delaware issued a Markman order in the litigation brought by Affymetrix against Illumina.

In a Markman decision, the District Court interprets disputed claim language.

The court's Aug. 16 order addressed 15 disputed claim terms in the five patents-in-suit.

The court agreed with Affymetrix's proposed constructions for most terms and adopted only two of Illumina's proposed constructions.

The court rejected Illumina's primary contentions and found instead that the patents-in-suit are not limited to in situ synthesis; the patents-in-suit are not limited to probes chemically linked to a single surface; and the patents-in-suit are not limited to placement of probes at predetermined locations (and therefore cover random assembly of arrays).

Affymetrix has accused Illumina of infringing U.S. Patent Nos. 6,355,432, 6,646,243, 5,545,531, 6,399,365 and 5,795,716.

In a separate decision, the court also denied Illumina's motion to dismiss the '716 patent for lack of standing. The court affirmed Affymetrix's ownership of and right to sue on the '716 patent.

Based in Santa Clara, Calif., Affymetrix is a medical technology company.

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