A Medical Device Daily

Affymetrix (Santa Clara, California) and Illumina (San Diego) reported an agreement that settles patent infringement litigation between them. Illumina agreed to pay Affymetrix $90 million, without admitting any liability.

Affymetrix in turn agreed to dismiss all lawsuits it had brought against Illumina. Illumina agreed to dismiss its counterclaims in the lawsuits.

In exchange for the payment, Affymetrix granted Illumina, its affiliates and its customers a perpetual covenant not to sue for making, using or selling any of Illumina’s current products, evolutions of those products and services related thereto. Affymetrix said it also extended the covenant not to sue for four years for making, using or selling Illumina products or services that are based on future technology developments.

The covenant not to sue covers all fields other than photolithography, the process by which Affymetrix manufactures its arrays and a field in which Illumina does not operate.

Last March, the U.S. District Court for the District of Delaware ruled that Illumina had infringed patents held by Affymetrix and Illumina then said it would appeal the verdict (Medical Device Daily, March 15, 2007). In October, Affymetrix added additional infringement claims to its suit against Illumina, and court action was expected to begin in early February of this year (MDD, Oct. 26, 2007).

The settlement will resolve all litigations and payments resulting from lawsuits Affymetrix commenced against Illumina in U.S. District Court for the District of Delaware, in Regional Court in D sseldorf (Germany), and in High Court of Justice, Chancery Division – Patents Court in London.

Illumina manufactures next-generation life science tools and integrated systems for the large scale analysis of genetic variation and biological function.

In other legal action: Cynosure (Westford, Massachusetts), a manufacturer of light-based aesthetic treatment systems, and its largest shareholder, El.En. S.p.A., said they have filed a patent infringement lawsuit against CoolTouch (Roseville, California) in U.S. District Court for the District of Massachusetts, alleging alleges that CoolTouch’s 1320 nm CoolLipo laser system infringes on U.S. Patent No. 6,206,873 (the 873 patent), which covers technology using laser energy to remove subcutaneous fat.

Cynosure is the exclusive licensee of the 873 patent, owned by El.En.

Cynosure terms the 873 patent “a fundamental component of the Smartlipo LaserBodySculpting Workstation, designed as an alternative to traditional liposuction in patients with small areas of localized fat.

Cynosure says it received FDA clearance to market the Smartlipo workstation in 4Q06. The product, launched in early 2007, uses a 1064 nm Nd:YAG laser to deliver energy directly to subcutaneous fat cells, causing them to rupture. The emitted fat-melting energy also coagulates tissue, thus inducing collagen retraction and tissue tightening.

The lawsuit seeks monetary damages and an injunction against CoolTouch to prohibit further infringement.

“Smartlipo has become the gold standard for the minimally invasive removal of localized fat ... .” said Michael Davin, president/CEO of Cynosure. “As evidenced by the new higher-powered 10- and 18-watt workstations we introduced in 2007, we continue to make significant investments in the future of the Smartlipo workstation.”

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