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Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies, Inc.

United States District Court, D. Delaware

March 23, 2018

PACIFIC BIOSCIENCES OF CALIFORNIA, INC., Plaintiff,
v.
OXFORD NANOPORE TECHNOLOGIES, INC., Defendant.

          Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE

          Edward R. Reines and Derek C. Walter, WEIL, GOTSHAL & MANGES LLP, Redwood Shores, CA Attorneys for Plaintiff

          Maryellen Noreika and Jack B. Blumenfeld, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE Stephen M. Hash, Puneet Kohli, and Samoneh Kadivar, BAKER BOTTS L.L.P., Austin, TX Attorneys for Defendant

          MEMORANDUM OPINION

          Stark, Judge

         Plaintiff Pacific Biosciences of California, Inc. ("PacBio") filed suit against Defendant Oxford Nanopore Technologies, Inc. ("Oxford") on September 25, 2017. In response to a motion to dismiss filed by Oxford, PacBio filed its First Amended Complaint (D.I. 13) ("Complaint") on November 30, 2017. The Complaint alleges that Oxford infringes U.S. Patent Nos. 9, 678, 056 and 9, 738, 929 (the '"929 patent"). On December 14, 2017, Oxford moved to dismiss the Complaint's claim for infringement of the '929 patent for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), based on Oxford's contention that the claims of this patent are not directed to patent-eligible subject matter under 35 U.S.C. § 101. (D.I. 19) Oxford's motion is fully briefed and the Court heard oral argument on February 27, 2018. (See D.I. 45 ("Tr."))

         For the reasons stated below, the Court will deny Oxford's motion to dismiss.[1]

         I. BACKGROUND

         DNA is made up of two complementary strands of nucleotides whereby a nucleotide on one strand is paired up with a nucleotide on the other strand. Since a certain type of nucleotide will always pair up with only one type of nucleotide (e.g., adenine only with thymine, and cytosine only with guanine), once one member of a pair of nucleotides is identified, the other in the pair may be identified as well. (See D.I. 20 at 2; Tr. at 4)

         Nanopore sequencing is a method of identifying a sequence of nucleotides on a portion of DNA. The method generally involves putting the DNA through a small hole (or nanopore) while passing an electric current through the nanopore and - because each type of nucleotide reacts in a particular way to an ionic current - determining the nucleotide sequence by watching how each nucleotide reacts to the electric current. (See Compl. at 7; D.I. 24 at 4-5; Tr. at 31)

         The '929 patent generally relates to a nanopore DNA sequencing process that engages in redundant sequencing (i.e., analyzing both strands of DNA rather than just one strand) to determine a nucleotide sequence of interest. By checking both strands of DNA, the '929 patent implements a method of checking the sequencing information for accuracy because a nucleotide sequence on one strand must have a specific complementary nucleotide sequence on the other strand. Since errors in the nanopore sequencing process are not uncommon, if the results from the two strands do not properly pair up, then it is known that there was an error in the sequencing process. Alternatively, if the results do pair up, then there is a greater level of confidence in the results. (See Compl. at 8-9, 16-17; D.I. 24 at 4-6; Tr. at 33, 35, 58)

         PacBio alleges that Oxford infringes claims 1-2, 6-8, and 10-11 of the '929 patent.

         Independent claim 1 is representative of the asserted claims and reads:

A method of determining a nucleotide sequence of a region of interest in a polynucleotide, the method comprising:
introducing a polynucleotide comprising a region of interest to a sequence analysis system comprising a nanopore in a membrane, wherein the polynucleotide comprises a double-stranded portion comprising complementary strands of the region of interest; applying a voltage across the membrane;
monitoring variations in ionic current through the nanopore of the sequence analysis system during enzyme chaperone-regulated passage of the polynucleotide through the nanopore;
analyzing the monitored variations in ionic current to obtain nucleotide sequence information for the polynucleotide, wherein the nucleotide sequence information comprises redundant sequence information for the region of interest, wherein the redundant sequence information comprises the nucleotide sequence of the complementary strands; and determining a consensus sequence for the region of interest based on the redundant sequence information.

('929 patent, cl. 1) Claims 2, 6-8, and 10-11 are dependent on independent claim 1.

         Oxford moves to dismiss PacBio's patent infringement claims as to each of the asserted claims of the '929 patent on the grounds that they claim ineligible subject matter. (D.I. 19).

         II. RECENT ...


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