INCYTE PHARMACEUTICALS, INC. v. Affymetrix, Inc.

ORDER DENYING MOTION TO DISMISS

Defendant Affymetrix, Inc. (“Affyme-trix”), moves for dismissal of the first amended complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs Incyte Pharmaceuticals, Inc. (“Incyte”), and the Board of Trustees of the Leland Stanford Junior University (“Stanford”) oppose the motion. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on July 10, 2000. For the reasons set forth below, the motion will be denied.

I. BACKGROUND

In March 1995, Stanford and Synteni, Inc. (“Synteni”), entered into an agreement whereby Stanford granted Synteni an exclusive license to make, use and sell products covered by, inter alia, certain patents and patent applications. Stanford also granted Synteni the right to grant sublicenses at its discretion and without consent from Stanford. Both Stanford and Synteni had the right to institute infringement actions involving licensed patents, but each was required to provide notice to the other, which had the option to join in the proceedings.

In August 1995, Patrick Brown and Dari Shalon (“Brown et al.”) filed…