LONDON - UK gene chip company Oxford Gene Technology Ltd. (OGT) is being funded by Hewlett-Packard to take Affymetrix Inc. to court in a bid to get Affymetrix's U.S., UK and European patents for DNA microarrays revoked. The funding is part of a license agreement OGT has signed with Hewlett-Packard subsidiary Agilent Technologies Inc. for OGT's microarray technology.

Agilent needs access to the technology as part of its plan to build on its position in ink jet printing to enter the DNA array market. OGT patents cover the use of computer-controlled printing to produce arrays, but there are concerns that Affymetrix makes such broad claims in the contested patents that the technology could be considered to fall within its scope.

Using ink jet printing to lay down DNA on chips is expected to be far more efficient and cheaper than existing production techniques. Agilent said it will be able to design and produce customized oligonucleotide arrays, representing thousands of genes per array, in a matter of days.

Last week, OGT launched legal proceedings in the High Court in London to revoke two UK patents relating to microarrays, numbers GB2,248,840 and EP (UK) 0 619 321. Affymetrix says it will defend the proceedings. This follows an application by OGT in October to oppose Affymetrix's European patent, EP 0 619 321, granted in January 1999. OGT also intends to contest the patents in the U.S.

Andy Millar, CEO of OGT's services arm, Oxford Gene Technology Services Ltd., told BioWorld International that financial details could not be disclosed. "But from our point of view, this is really important because it enables us to see the litigation through."

Millar denied that OGT is being used as a pawn in a fight between two large U.S. companies. "This is a battle, but we were already in the thick of it, defending our patents. Bringing Agilent in on our side gives us strong reinforcements."

OGT is contesting the Affymetrix patents because it believes they are unjustifiably broad, and if allowed to remain in place would put a block on development of array technology. Ed Southern, founder of OGT, said, "Affymetrix did not invent the array. Yet they appear to be attempting to patent all arrays and achieve a monopoly over all arrays. This conduct may hinder the emergence of competitive array technologies, such as the computer-controlled printing techniques disclosed in our original filing."

At the same time, OGT said it has done a cross-licensing deal with Incyte Pharmaceuticals Inc., of Palo Alto, Calif., covering their respective microarray and gene expression technologies. This gives Incyte the right to use DNA microarrays to develop bioinformatics databases for multiple licensing. Again, financial details were not disclosed, but Millar said, "The money from Incyte will be important in enabling us to fund litigation."

OGT had already filed two other suits against Affymetrix, of Santa Barbara, Calif., in July, alleging infringements of two of OGT's microarray patents. OGT is seeking compensation for alleged sales infringements in the U.S. and Europe. Affymetrix claims it secured rights to OGT technology via an agreement with Beckman Coulter Inc., of Fullerton, Calif. Beckman has a license from OGT that includes the right for collaborative partners to use the technology. OGT is contesting the validity of this technology transfer, and a hearing on this issue is due to be heard in London in February.

Southern said, "We believe [the court] will declare invalid Affymetrix's attempts to secure a license by means other than negotiation with OGT." n