Affymetrix Files Second Wave of Patent Infringement Lawsuits Against Illumina in United States and Europe

New Filings Target Recently Acquired Solexa® Technology and BeadArray Products

SANTA CLARA, Calif.--()--Affymetrix Inc. (Nasdaq:AFFX) today announced that it has filed additional patent infringement lawsuits against Illumina Inc. in the United States District Court for the District of Delaware, in the U.K. High Court of Justice, Chancery Division, Patents Court and in the German Düsseldorf Regional Court, Patent Division. Affymetrix is seeking all available remedies, including injunctive relief.

The new suits target technology offered by Solexa®, the company acquired by Illumina in January 2007, as well as all of Illuminas BeadArray products. Affymetrix also filed new lawsuits in Germany and the U.K. because the infringing acts extend beyond the U.S. market.

Todays filings include the following patents:

Patent Number

  Patent Title   ILMN Products Covered
   
5,902,723   Analysis of Surface Immobilized Polymers Utilizing Microfluorescence Detection   Assays, products, and associated instrumentation under the name BeadArray technology, including, but not limited to, the Infinium® II assay.
6,403,320   Support Bound Probes and Methods of Analysis Using the Same   Products and associated instrumentation under the name BeadArray technology, including, but not limited to, all of Illuminas Sentrix® Array Matrix and BeadChip arrays, the BeadArray Reader, and the detection instrument used to decode all of Illuminas BeadArray arrays.
6,420,169   Apparatus for Forming Polynucleotides or Polypeptides   Products and associated software and instrumentation under the name Solexa Sequencing technology, including, but not limited to, the Genome Analyzer, Clonal Single Molecule Array technology, and the 1G Genome Analysis System.
6,576,424   Arrays and Methods for Detecting Nucleic Acids   Products and associated instrumentation under the name BeadArray technology, including, but not limited to, BeadArray arrays used with the Infinium® I and II and Direct Hybridization assays.
7,056,666   Analysis of Surface Immobilized Polymers Utilizing Microfluorescence Detection   Products and associated software and instrumentation under the name Solexa Sequencing technology, including, but not limited to, the Genome Analyzer, Clonal Single Molecule Array technology, and the 1G Genome Analysis System
0834575   Identification of Nucleic Acids in Samples   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina genotyping and gene expression assays.
0853679   Expression Monitoring by Hybridization to High Density Oligonucleotide Arrays   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina gene expression assays.
0799897   Kits and Methods for the Detection of Target Nucleic Acids with the Help of Tag Nucleic Acids   Assays, products, software, and associated instrumentation under the name BeadArray technology, including, but not limited to, all Illumina GoldenGate® and DASL® assays and arrays.

Affymetrix previously sued Illumina for patent infringement in 2004 in the United States District Court for the District of Delaware. In March 2007, the jury returned a verdict in favor of Affymetrix. The jury found that Illumina's arrays, assays, scanners, software and related products infringed on one or more claims of all five of Affymetrix' (5,535,531, 5,795,716, 6,355,432, 6,399,365, and 6,646,243) patents-in-suit. The jury imposed a royalty of 15 percent, and awarded total damages of more than $16.7 million for the period of 2002-2005. After the final judgment, the Court will calculate the additional damages through the date of the final judgment.

The next phase of the trial, which will focus on the validity of Affymetrix patents, is scheduled to begin on February 11, 2008. The following phase, expected to occur in May or June 2008, will determine whether Illumina's infringement was willful. Affymetrix has also requested injunctive relief in this case, and will ask that the Court take up this request once the patents are found to be valid.

Affymetrix has developed one of the industry's strongest patent portfolios, featuring more than 400 patents granted in the U.S. and more than 40 patents granted in Europe. The company continues to license its technology under appropriate circumstances to stimulate the broad commercialization of genome analysis technologies.

To view todays filings, please visit: http://investor.affymetrix.com/phoenix.zhtml?c=116408&p=irol-irhome

Affymetrix management will be discussing this litigation during the third quarter operating results conference call at 2:00 p.m. PT on October 24, 2007. The dial-in number for domestic callers will be (866) 500-AFFX and international callers will be (706) 643-2771. To listen to a live webcast of the conference call, please go to the Investor Relations section of the companys website at www.affymetrix.com.

A replay of this call will be available from 5:00 p.m. PT on October 24, 2007 until 8:00 p.m. PT on October 31, 2007 at the following numbers: domestic: (800) 642-1687, international: (706) 645-9291. The passcode for both is 19331218. An archived webcast of the conference call will be available under the Investor Relations section of the Company's website at www.affymetrix.com.

About Affymetrix

Affymetrix GeneChip® microarray technology is the industry-standard tool for analyzing complex genetic information. After inventing microarray technology in the late 1980s, Affymetrix scientists have been dedicated to developing innovative products that provide researchers with a more complete view of the genome. These products continue to accelerate genetic research and enable scientists to develop diagnostics and tailor treatments for individual patients by identifying and measuring the genetic information associated with complex diseases.

Today, Affymetrix technology is used by the worlds top pharmaceutical, diagnostic and biotechnology companies, as well as leading academic, government and not-for-profit research institutes. More than 1,600 systems have been shipped around the world and more than 10,500 peer-reviewed papers have been published using the technology.

Affymetrix is headquartered in Santa Clara, Calif., and has manufacturing facilities in Sacramento, Calif., and Singapore. The company has about 1,100 employees worldwide and maintains sales and distribution operations across Europe and Asia. For more information about Affymetrix, please visit the companys website at www.affymetrix.com.

Forward-looking Statements

All statements in this press release that are not historical are forward-looking statements within the meaning of Section 21E of the Securities Exchange Act as amended, including statements regarding Affymetrix expectations, beliefs, hopes, intentions, strategies or the like. Such statements are subject to risks and uncertainties that could cause actual results to differ materially for Affymetrix from those projected, including, but not limited to: risks and uncertainties associated with the final outcome of the litigation against Illumina discussed in this press release; risks of the companys ability to achieve and sustain higher levels of revenue, higher gross margins and reduced operating expenses; uncertainties relating to technological approaches, manufacturing and product development; personnel retention; uncertainties related to cost and pricing of Affymetrix products; dependence on collaborative partners; uncertainties relating to sole-source suppliers; uncertainties relating to FDA and other regulatory approvals; competition; risks relating to intellectual property of others and the uncertainties of patent protection and litigation. These and other risk factors are discussed in Affymetrix Form 10-K for the year ended December 31, 2006, and other SEC reports, including its Quarterly Reports on Form 10-Q for subsequent quarterly periods. Affymetrix expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in Affymetrix expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.

NOTE: Affymetrix, the Affymetrix logo and GeneChip® are registered trademarks owned or used by Affymetrix Inc.

Contacts

Affymetrix Inc.
Andrew Noble, 408-731-5571 (Media)
Associate Director, Corporate Communications
Doug Farrell, 408-731-5285 (Investors)
Vice President, Investor Relations

Contacts

Affymetrix Inc.
Andrew Noble, 408-731-5571 (Media)
Associate Director, Corporate Communications
Doug Farrell, 408-731-5285 (Investors)
Vice President, Investor Relations