USPTO orders re-examination of two patents included in the patent litigation between Illumina and Affymetrix

Illumina, Inc. has announced that the United States Patent and Trademark office has ordered the re-examination of U.S. Patent Nos. 6,355,432 and 6,646,243.

The serial numbers for the re-examinations are 90/008,885 and 90/008,889, respectively. They were assigned the same filing date of November 27, 2007. The 6,355,432 and 6,646,243 patents are two of the patents currently the subject of the infringement suit Affymetrix, Inc. filed against Illumina on July 26, 2004 in U.S. District Court for the District of Delaware under Civil Action No. 04-901-JJF.

Any person may at any time request that the U.S. Patent Office re-examine a patent on the basis of prior art. The request for re-examination must explain the relevance of the prior art being brought to the attention of the Patent Office, and the manner of applying the cited prior art to every claim for which reexamination is requested. In its request for re-examination of the ‘ 432 and 243 patents Illumina has asked the Patent Office to re-examine all of the patent claims. Once, as in this case, the Patent Office has found that the cited prior art raises a substantial new question of patentability, the re-examination process typically takes about one year.

Detailed information about these re-examinations can be found on the U.S. Patent Office website which can be accessed at http://portal.uspto.gov/external/portal/pair. The U.S. Patent Office has yet to rule on the other requests for re-examination filed by Illumina regarding the three other patents that are the subject of the 2004 suit.

“ We are pleased to hear that the U.S. Patent Office has decided to re-examine the validity of these two patents. We expect the Patent Office to consider closely the applicability of the prior art in their evaluation of whether these patents should be amended or invalidated in their entirety, ” said Jay Flatley, President and Chief Executive Officer of Illumina.