Tech Transfer eNews Blog

Harvard and biotech company 10x must face antitrust claims in two patent lawsuits, judge rules

By Jesse Schwartz
Published: September 13th, 2023

A federal judge has ruled that Harvard University and biotech company 10x Genomics must face antitrust claims over their licensing practices in two lawsuits over gene analysis technologies.

The decision comes one year after Harvard and 10x jointly filed patent infringement lawsuits against Vizgen and NanoString — two rival companies of 10x — accusing them of launching platforms similar to 10x’s Xenium In Situ, which analyzes gene expression in single cells.

Now Delaware District Court Judge Matthew F. Kennelly has allowed the two rival companies to advance claims that Harvard and 10x violated open licensing agreements and attempted to monopolize their market instead.

10x developed Xenium In Situ using technology from ReadCoor, a Harvard start-up that 10x acquired in 2020. In a joint NIH funding application filed in 2009, Harvard and ReadCoor founder George M. Church, a professor at Harvard Medical School, wrote that Church was “committed” to making the technology broadly available to researchers, including “technology transfer to industry, whereby companies incorporate the innovations into their products.”

But seven years later, Harvard signed a license agreement granting ReadCoor exclusive rights to the patents. Then in 2022, soon after NanoString and Vizgen launched their own similar platforms, Harvard and 10x sued the companies, alleging their platforms infringed on the Xenium In Situ patents.

NanoString and Vizgen have accused Harvard and 10x of breaking the original funding agreement with NIH, which required “open and non-exclusive licensing” for innovations developed using those funds. According to the two companies, Harvard and 10x had promised the NIH that they would grant non-exclusive licenses for the patents, yet still granted an exclusive license to ReadCoor and went on to sue NanoString and Vizgen over patents that should have been non-exclusive to begin with.

“We’re pleased that the Court rejected 10x’s and Harvard’s attempts to keep these issues surrounding the NIH grant documents and their anticompetitive conduct and effect on the market out of the case,” says Brad Gray, president and CEO of NanoString.

Despite allowing the two companies’ claims to advance, Kennedy ruled that they are not entitled to sue for breach of contract between Harvard and NIH. The district court judge based his decision on the fact that NanoString and Vizgen are not third-party beneficiaries of the original funding agreement that stipulated open licensing.

Eric Whitaker, chief legal officer of 10x, called this ruling a “significant win” and predicted 10x and Harvard would also prevail in the antitrust matter. “The antitrust claims will face similar scrutiny,” he says, “and 10x will move to dismiss them at the appropriate time.”

Source: The Harvard Crimson.

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