AGILENT Technologies has today claimed a victory over rival Affymetrix, after a ruling from the European Patent Office upheld its opposition to a patent including the term ‘control probe’.
Affymetrix’s European Patent EP 0853679, covering ‘Expression monitoring by hybridization to high density oligonucleotide arrays’, was first filed in 1996 and approved in 2002.
A challenge to the patent was made in 2003, when Agilent along with Combimatrix and Clonediag outlined their counter claims. Agilent says it particularly objected to the breadth of the patent, and the broad use of the term ‘control probe’ in connection with gene-expression microarrays.
A partial victory for the challenge came in 2006 with a narrowing of the patent claims, but Agilent and Clonediag felt these were still over-broad and vague. A further appeal in 2009 led to a hearing in July 2012 and this latest ruling.
Although the European Patent Register still shows EP0853679 with the status ‘The patent has been granted’ the full application history includes an entry dated 5 July 2012 reading ‘Result of appeal procedure: revocation of the patent.
Robert Schueren, Agilent’s vice president of genomics, welcomed the news which became public today (25 July 2012): “This ruling is a very positive result for [our] European gene-expression microarray customers and the entire European gene-expression community. The ruling allows customers to continue using established workflows and protocols, including control probes, without having to worry about potential patent infringement”.