Stratagene plans to appeal jury decision, $15.9 million judgment in Third Wave patent-infringement case

By E. Janene Geiss

Philadelphia, Dec. 20 - Stratagene Corp. announced Tuesday that it would appeal the $15.9 million judgment assessed by a federal judge in its patent lawsuit with Third Wave Technologies, along with the jury's decision in the case.

The judge also denied on Tuesday Stratagene's motions for judgment as a matter of law and for a new trial, according to a company news release.

In addition to the $15.9 million in damages, the judge ruled that Stratagene must pay Third Wave's attorney's fees, company officials said.

On Aug. 31, 2005, the jury in the case of Third Wave Technologies Inc. vs. Stratagene in the United States District Court for the Western District of Wisconsin determined that Third Wave's 6,090,543 and 6,348,314 patents are valid and that Stratagene's FullVelocity products infringed those patents.

Stratagene officials said sales of these products were about $400,000 since their inception in early 2004.

Stratagene also said it has other embodiments of its FullVelocity technology that do not infringe Third Wave's patents, and it believes that these embodiments can be applied effectively in both the research and molecular diagnostics marketplaces.

The company also said it believes the jury's verdict and the damages awarded were not supported by the facts of the case or the law and as a result, the company intends to file an appeal in the Court of Appeals for the Federal Circuit in Washington, D.C. once a final judgment has been entered by the District Court. It said it also will be seeking to have the damages amount reduced or eliminated.

Among the issues the company said it will raise on appeal include the District Court's decisions to prevent the jury from hearing evidence that Stratagene had obtained patents on its FullVelocity technology and that the Patent Office had concluded and informed Stratagene that Stratagene's patents were free and clear of the prior art, including Third Wave's patents, the District Court's rejection of Stratagene's position that Third Wave's patents are invalid if they are interpreted as broadly as the District Court interpreted them and the District Court's awarding of $15.9 million in damages when there was only about $400,000 in allegedly infringing sales by Stratagene.

The company has previously announced that it has a pending lawsuit against Third Wave for infringement of Stratagene's patents covering its proprietary FullVelocity technology for the quantitative detection of nucleic acids.

The suit was filed in the U.S. District Court for the District of Delaware and seeks monetary damages as well as a permanent injunction against continued infringement by Third Wave for the sale of its Invader Plus products.

Stratagene is a La Jolla, Calif., developer, manufacturer and marketer of specialized life science research and diagnostic products.

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