Harvard and 10x to face anti-competitive claims over genomics patents
Delaware court permits counterclaims from Vizgen and Nanostring in separate suits | Firms say patents-in-suit were covered by ‘open and non-exclusive licenses’.
Vizgen and Nanostring will be allowed to bring counterclaims of anti-competitive practices in ongoing patent litigation with Harvard College and 10x Genomics, a Delaware district court decided this week.
The order, handed down on Monday (July 10), means Harvard and 10x must defend against allegations that they are “pursuing an ill-gotten monopoly by enforcing patents that are subject to a requirement that they be licensed non-exclusively”.
US biotech firms Vizgen and Nanostring are embroiled in separate lawsuits after allegedly infringing patents belonging to Harvard and 10x, covering single-cell spatial transcriptomics (SST).
Vizgen is accused of infringing five patents through its Merscope genomics platform, and Nanostring is accused of infringing two patents covering gene-mapping technology.
In April this year, Vizgen said it had uncovered new evidence showing that Harvard had committed to “open and non-exclusive licences” for the patents-in-suit, following a $19 million grant of public money from the National Institutes of Health (NIH). It accused Harvard and 10x of concealing the details of the licences and “betraying the public trust”.
District Judge Matthew Kennelly denied Harvard and 10x’s motion to dismiss Vizgen’s counterclaims on Monday this week, which include allegations that the duo engaged in an anti-competitive scheme.
However, the judge dismissed Vizgen’s counterclaim of breach of contract, as although Vizgen had sufficiently alleged the existence of a contract requiring Harvard to offer open and non-exclusive licensing agreements for patents, it had failed to show it was a third-party beneficiary.
The court also permitted the counterclaims put forward by Nanostring, stating that the firm had “plausibly alleged that this scheme, if successful, will provide 10x and Harvard with monopoly power to ‘force customers in the single-cell spatial transcriptomics market to pay artificially inflated prices’.”
President and CEO of Nanostring Brad Gray said: “We’re pleased that the court rejected 10x’s and Harvard’s attempts to keep these issues surrounding the NIH grant documents and their anti-competitive conduct and effect on the market out of the case.
“This is a significant development and provides Nanostring with another avenue for success in the case.”
Unified Patent Court
10x Genomics has taken its patent litigation to the Unified Patent Court (UPC) in the first month of the court’s opening.
The firm, headquartered in California, sued Vizgen in a Hamburg court for allegedly infringing EP4108782 through its Merscope platform, with a request for unitary effect for the patent formally allowed on June 12. The claim was lodged on June 1 despite the formal grant not being until June 7.
The firm has also indicated that it has sought preliminary injunctions against Nanostring for allegedly infringing the same patent, as well as EP2794928.
Nanostring has said that it intends to introduce evidence with respect to the NIH grant documents in its appeal of a May 17 decision of the Munich Court and in the proceeding with the UPC.
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