By Andrew Karpan

Law360 (June 4, 2021, 5:01 PM EDT ) Bio-Rad has told a Massachusetts federal judge that any mention of the ongoing COVID-19 pandemic at next month's jury trial over its patented DNA technology would be "highly inflammatory," accusing 10X of trying to overstate the "alleged importance" of 10X's own scientific research.

Bio-Rad Laboratories Inc. did not mince words in its request that U.S. District Judge William G. Young prevent 10X Genomics Inc. from making the argument to jurors that an adverse verdict in the case would impact the company's COVID-19-releated work. A trial in the case is currently scheduled to begin on July 6. 

"Given the dozens of COVID-related exhibits on 10X's exhibit list, it is clear that 10X is blatantly attempting to transmogrify a routine patent case into a referendum on the alleged importance of 10X products as scientific research tools," Bio-Rad said in a Wednesday filing.

Those exhibits include, according to Bio-Rad, "dozens of papers and presentations relating to coronavirus research using 10X technology," as well as deposition testimony that highlights multiple scientific publications on COVID-19 research that cite 10X.

Part of the problem, Bio-Rad said, is that 10X hasn't presented any evidence of how important its COVID-19 research might be. In its motion, Bio-Rad pointed to deposition testimony from Serge Saxonov, one of 10X's founders.

"Saxonov, in his deposition testimony, was quick to suggest that 10X's products had been used in the development of antibody therapies and vaccines against COVID-19. However, when asked for specifics, Saxonov could provide no direct evidence, and could rely only on hearsay," Bio-Rad said.

But even if 10X could draw any connection between its work and research into COVID-19, Bio-Rad also argued that the impact of an infringement verdict would remain "purely speculative," while any mention of the ongoing pandemic would be "highly inflammatory."

Along with Harvard University, whose DNA technology Bio-Rad licenses, Bio-Rad's infringement allegations claim that 10X infringed patents connected to a process of conducting biological analysis by separating samples into tiny droplets.

An earlier lawsuit between the companies purported that 10X pilfered patented DNA technology that was owned by the University of Chicago and licensed to Bio-Rad. In 2018, a Delaware jury awarded Bio-Rad nearly $24 million in that case, which a federal judge later increased to $35 million. 10X is still fighting that verdict, citing revelations from discovery in the Massachusetts case regarding the value of Bio-Rad's patents.

In a motion late last month, 10X requested that Bio-Rad be precluded from referring at all to anything from the two companies' "long litigation history dating back almost to the founding of 10X."

Judge Young has yet to rule on either request.

Representatives for the parties did not respond to requests for comment on Friday.

The patents-in-suit are U.S. Patent Nos. 9,919,277 and 8,871,444.

Bio-Rad is represented by Justin L. Constant, Edward Reines, Derek C. Walter, Prachi Mehta, Patrick J. O'Toole, Jr., Eric S. Hochstad, Xiaoxi Tu, Audra Sawyer and Garland Stephens of Weil Gotshal & Manges LLP, and David S. Godkin and James E. Kruzer of Birnbaum & Godkin LLP.

10X is represented by Matthew D. Powers, Paul T. Ehrlich, Stefani C. Smith, Robert L. Gerrity, Jennifer K. Robinson, Natasha M. Saputo, Gina Cremona, Daniel Radke, Azra M. Hadzimehmedovic, Aaron M. Nathan, Samantha A. Jameson and Kiley White of Tensegrity Law Group LLP, Sarah Chapin Columbia, Annabel Rodriguez and Hala S. Mourad of McDermott Will & Emery LLP and Elizabeth R. Moulton, E. Joshua Rosenkranz and Melanie L. Bostwick of Orrick Herrington & Sutcliffe LLP.

The case is Bio-Rad Laboratories Inc. et al. v. 10X Genomics Inc., case number 1:19-cv-12533, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Cara Salvatore. Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.