The US Court upheld a ruling of the English Court of Appeal delivered the previous week that Affymetrix has a licence under Oxford’s patent valid from 1st June 1999 by virtue of its purchase at that time of another biotech business which was a licensee of Oxford.
Oxford is seeking to appeal that ruling to the House of Lords. If the House of Lords reverses the Court of Appeal's decision, the US court will apply the new ruling, so that Affymetrix's infringement will be continuing.
The present position is that Oxford can claim substantial damages for the period up until 1st June 1999 when the licence was deemed transferred to Affymetrix. If the licence is upheld, the latest US court ruling means that Affymetrix will be liable for 10% royalties on their entire future sales of the infringing products.
Affymetrix is bringing a separate action which claims that Oxford’s patent is invalid. If it fails to win this, there will be another jury trial in the US to determine Oxford’s damages claim.