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The Regents of University of California v. Affymetrix, Inc.

United States District Court, S.D. California

November 20, 2017

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; and BECTON, DICKINSON and COMPANY, Plaintiffs,
v.
AFFYMETRIX, INC.; and LIFE TECHNOLOGIES CORP., Defendants.

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION [Doc. No. 8.]

          MARILYN L HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT

         On July 12, 2017, Plaintiff Becton, Dickinson and Company filed a motion for a preliminary injunction. (Doc. No. 8.) On September 27, 2017, Defendants Affymetrix, Inc. and Life Technologies Corp. filed an opposition to Plaintiff's motion for a preliminary injunction. (Doc. No. 50.) On October 25, 2017, Plaintiff filed a reply. (Doc. No. 60.) The Court held a hearing on the matter on November 20, 2017. Donald R. Ware, Barbara Fiacco, and Jesse Hindman appeared for Plaintiffs. Douglas E. Lumish, Roger J. Chin, and Brent T. Watson appeared for Defendants. For the reasons below, the Court denies Plaintiff's motion for a preliminary injunction without prejudice.

         Background

         On July 10, 2017, Plaintiffs the Regents of the University of California and Becton, Dickinson filed a complaint for patent infringement against Defendants, alleging infringement of U.S. Patent No. 9, 085, 799, U.S. Patent No. 8, 110, 673, and U.S. Patent No. 8, 835, 113. (Doc. No. 1, Compl.) Specifically, Plaintiffs allege that Defendants are directly and indirectly infringing the patents-in-suit by manufacturing and selling products that incorporate polymer tandem dyes Super Bright 600, Super Bright 645, and Super Bright 702 (“the accused products”). (Id. ¶¶ 29-61.) By the present motion, Plaintiff Becton Dickinson moves for a preliminary injunction enjoining “Defendants, until further order of this Court, from (1) selling or offering to sell in the United States any products containing the polymer tandem dyes they currently market as ‘Super Bright 600, ' ‘Super Bright 645, ' ‘Super Bright 702, ' or any other polymer tandem dyes that contributorily infringe claims 1 or 3 of the '799 Patent; or (2) taking any other actions with respect to such dyes that induce others to practice claims 1 or 3 of the '799 Patent.” (Doc. No. 8 at 2.)

         Although Plaintiffs allege infringement of three patents in the complaint, Plaintiff Becton Dickinson's motion for a preliminary injunction focuses on claims 1 and 3 of the '799 patent. The '799 patent is entitled “Methods and compositions for detection and analysis of polynucleotides using light harvesting multichromophores.” U.S. Patent No. 9, 085, 799 (filed Jul. 21, 2015), at (54). The invention disclosed in the '799 patent relates to “methods, articles and compositions for the detection and analysis of polynucleotides in a sample.” Id. at 1:28-30.

         The specification of the '799 patent explains: “Methods permitting DNA sequence detection in real time and with high sensitivity are of great scientific and economic interest. Their applications include medical diagnostics, identification of genetic mutations, gene delivery monitoring and specific genomic techniques.” Id. at 1:34-38 (footnotes omitted). The specification further explains that at the time of the invention, there was a need in the art for methods of detecting and analyzing particular polynucleotides in a sample, and that such methods are provided in the '799 patent. Id. at 1:49-58.

         The specification of the '799 patent describes the method as follows:

The method of the invention comprises contacting a sample with an aqueous solution comprising at least two components; (a) a light harvesting, polycationic, luminescent multichromophore system such as, for example, a conjugated polymer, semiconductor quantum dot or dendritic structure that is water soluble, and (b) a sensor polynucleotide conjugated to a luminescent signaling chromophore (referred to as “Oligo-C*”).

Id. at 3:18-25. Claims 1 and 3 of the '799 patent claim: 1. A method comprising:

         (a) contacting a sample with a light harvesting multichromophore system, the system comprising:

i) a signaling chromophore; and
ii) a water-soluble conjugated polymer comprising a delocalized electronic structure, wherein the polymer can transfer energy from its excited state to the signaling chromophore to provide a greater than 4 fold increase in fluorescence emission from the signaling chromophore than can be achieved by direct excitation of the signaling chromophore in the absence of the polymer;
(b) applying a light source to the sample; and
(c) detecting whether light is emitted from the signaling ...

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