Judge: Roche subsidiaries shouldn’t dodge DNA patent suit

A Delaware magistrate judge has said that Roche subsidiaries should not be able to dismiss a suit claiming they infringed two DNA patents.

Ariosa Diagnostics, Roche Sequencing Solutions, Roche Medical Services, and Foundation Medicine (FMI) were accused by Ravgen of infringing its patents through the manufacture and sale of genetic tests using cell-free DNA.

The suit was originally filed on December 3, 2020, alleging infringement of US patents 7,332,277 and 7,727,720 which both relate to “Methods for Detection of Genetic Disorders”.

Following the original complaint, the defendants moved to dismiss the lawsuit for failure to state claim.

Magistrate Judge Jennifer Hall suggested on Wednesday that the US District Court for the District of Delaware dismiss the four pending motions to dismiss the suit, claiming two of the motions are moot following Ravgen’s first amendments to the complaint.

The first of the two remaining motions to dismiss was filed by Arisoa, Roche Sequencing Solutions, Roche Medical Services and the other from FMI respectively.

The first of the latter two motions to dismiss argues that infringement claims should be dismissed because the SAC fails to plausibly allege that Roche had pre-suit knowledge that it was infringing the patents.

However, the Roche subsidiaries admitted that they were aware of the patents prior to the suit. What they contended was that Ravgen failed to properly assert that they were aware that their activities infringed.

Hall said: “Roche’s view that they lacked knowledge of infringement is certainly one reasonable inference that can be drawn from the facts alleged. Indeed, it might be the most reasonable inference.

“[But] it is at least plausible, based on all of Ravgen’s allegations, to infer that the Roche defendants had pre-suit knowledge that their activities infringed the ’277 and ’720 patents.”

FMI claimed that it could not be liable for post-suit willful infringement because it lacked pre-suit knowledge of the patent.

Hall said: “FMI has not seriously contested that the original complaint contains sufficient factual allegations to put FMI on notice of what activity is alleged to constitute infringement.

“[Ravgen]  further pleads that FMI has continued to willfully infringe since the original complaint was filed. I think that is enough to support its claim for post-suit willful infringement at this stage.”

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