Harvard and 10x Genomics — a biotechnology company — must face antitrust claims over their licensing practices in two gene analysis lawsuits, a federal judge ruled in July.
Delaware District Court Judge Matthew F. Kennelly allowed Vizgen and NanoString — two rival biotech companies — to advance claims that Harvard and 10x violated open licensing agreements and attempted to monopolize their market.
The decision comes one year after Harvard and 10x jointly filed patent infringement lawsuits against Vizgen and NanoString, accusing the two companies of launching platforms similar to Xenium In Situ, a biotech platform owned by 10x that analyzes gene expression in single cells.
NanoString and Vizgen are 10x’s only market competitors for “single-cell spatial transcriptomics” platforms, which allow scientists to measure and map all of the gene activity in a particular tissue sample. The technology is designed to assist researchers in exploring biological processes and understanding disease.
Xenium In Situ was developed by 10x using technology from ReadCoor, which the company acquired in 2020. ReadCoor was founded by Harvard Medical School genetics professor George M. Church through a $20 million research grant from the National Institutes of Health.
When Church and Harvard jointly sought NIH funding in 2009, their application stated that Church was “committed” to making the innovations broadly available to researchers, including “technology transfer to industry, whereby companies incorporate the innovations into their products.”
But seven years later, Harvard agreed to license related patents exclusively to ReadCoor.
After NanoString and Vizgen launched their own similar platforms in 2019 and 2021, respectively, Harvard and 10x sued the companies in 2022, alleging that the new technologies had infringed upon the Xenium In Situ patent.
In response, NanoString and Vizgen accused Harvard and 10x of breaking a research agreement with the NIH that required “open and non-exclusive licensing” for innovations created with that funding. The companies alleged Harvard and 10x initially promised the NIH they would grant non-exclusive licenses for the patents, but then reneged and sued NanoString and Vizgen for patent infringement.
Vizgen and NanoString also alleged that Harvard and 10x attempted to monopolize the market by engaging in predatory and anticompetitive conduct — claims the court allowed to proceed.
Harvard Office of Technology Development spokesperson Kirsten L. Mabry declined to comment on the counterclaims.
NanoString President and CEO Brad Gray said in a press release that the court’s ruling “provides NanoString with another avenue for success in the case.”
“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,” he said.
In a press release, Vizgen said it was “pleased” with the court’s ruling on its counterclaims and “intends to continue to aggressively defend” its technology.
Despite allowing the antitrust claims to advance, Kennelly ruled that NanoString and Vizgen are not entitled to sue for breach of contract between Harvard and the NIH. The two companies, Kennelly decided, are not third-party beneficiaries of the original funding agreement that stipulated open licensing.
Chief Legal Officer of 10x Eric Whitaker said in a statement that the ruling was a “significant win.”
“The antitrust claims will face similar scrutiny, and 10x will move to dismiss them at the appropriate time,” he said.
Correction: September 6, 2023
A previous version of this article incorrectly stated that the lawsuits alleged Harvard and 10x promised NanoString and Vizgen they would grant non-exclusive licenses, but later reneged and sued for patent infringement. In fact, the lawsuit said that Harvard and 10x promised the National Institutes of Health they would create non-exclusive licenses.