By Karen Pihl-Carey

Hyseq Inc. will argue jointly with Synteni Inc. in a claims construction hearing concerning Affymetrix Inc.¿s lawsuits against both companies, claiming patent infringements.

A judge for the U.S. District Court for the Northern District of California decided this week to consolidate the claims construction hearings for the claims that are similar in the two suits. The judge still set separate trial dates. The hearings will take place Feb. 16 through 18, 2000, and will interpret what the patent owner has the right to cover. The suits involve Affymetrix¿s patents for its GeneChip technology.

The case against Hyseq, of Sunnyvale, Calif., is scheduled for trial Oct. 16, 2000, following the one against Synteni, a subsidiary of Palo Alto, Calif.-based Incyte Pharmaceuticals Inc., which is set for Sept. 11, 2000.

Separately, Hyseq has two pending lawsuits against Affymetrix for infringing patents covering its ¿sequencing by hybridization¿ technology. That suit is expected to go to trial sometime early next year.

Hyseq President and CEO Lewis Gruber said the company is pleased with the court¿s decision to consolidate the hearings.

¿All of the parties, Affymetrix, Synteni and Hyseq will argue together about the claims,¿ Gruber told BioWorld Today. ¿We think that¿s a big advantage for us. Since our lawsuit is behind the Synteni case in terms of timing, this allows us to get an early cut at the apple here.¿

Otherwise, Hyseq would have faced the burden of going second, after a judge already interpreted the patent rights in regard to the case against Synteni.

Hyseq filed suit against Affymetrix in March 1997, alleging the latter had incorporated into its GeneChip system Hyseq¿s patented sequencing by hybridization method of decoding genetic information. It involves Hyseq¿s patent Nos. 5,202,231, issued in 1993, and 5,525,464, issued in 1996, which cover sequencing by hybridization of oligonucleotide probes. Later, Hyseq filed a second complaint against Affymetrix for Affymetrix¿s deals with collaborators using the sequencing technology.

Affymetrix, of Santa Clara, Calif., filed suit against Hyseq in August 1998, alleging it had infringed two of Affymetrix¿s U.S. patents, Nos. 5,795,716 and 5,744,305. It later filed an amended complaint alleging infringement of U.S. Patent No. 5,800,992, as well. Affymetrix had filed a similar suit against Synteni earlier in the year.

Affymetrix denies infringing on any of Hyseq¿s patents, and Hyseq denies infringing on any of Affymetrix¿s patents.

Hyseq already has gone through a claims construction hearing in its cases against Affymetrix and is expecting a ruling any day. Gruber expects the cases to go to trial in the first half of 2000.

In addition to the joint hearing Feb. 16-18, Hyseq will have a claims construction hearing Feb. 23 on its own for Affymetrix claims that are not similar with those in the Synteni case.

¿We¿re pleased to have an opportunity to move this litigation along because we very firmly believe that we don¿t use the Affymetrix technology, and on the other lawsuit, that they do use our technology,¿ Gruber said.

Hyseq¿s two chief scientists in Yugoslavia invented Hyseq¿s sequencing technology in the 1980s. They filed a patent application in 1987. Affymetrix has said that its GeneChip technology does not use the technique described in Hyseq¿s patent.