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Fluidigm Corporation (NASDAQ:FLDM) and NanoString Technologies, Inc. (NASDAQ:NSTG) have agreed to settle lawsuits filed by Fluidigm against NanoString. The terms of the settlement require NanoString to, among other things, remove all references – from its marketing materials, website, and promotional activities – to a single-cell comparison study comparing Fluidigm and NanoString single-cell products, as well as recall and destroy all materials related to and/or based on the study.
“We believe in fair competition and providing researchers with the most accurate information possible so they can make informed decisions about which tools will help them unlock the mysteries of single-cell biology. We believe the Fluidigm BioMark™ HD System provides the most robust, sensitive instrumentation for single-cell gene expression analysis on the market today. When NanoString mischaracterized the capabilities of the BioMark HD System, we were compelled to take action to ensure such improper activity stopped,” said Gajus Worthington, President and Chief Executive Officer of Fluidigm. “We are happy that NanoString has agreed to remove, recall, and destroy the materials in question and take additional corrective measures so that we can each return to properly promoting our respective products’ attributes in the marketplace and helping our customers conduct great research,” Worthington concluded.
Fluidigm’s initial lawsuit against NanoString alleged false advertising, unfair competition, and unlawful trade practice in violation of the Lanham Act and corresponding sections of the California Business & Professional Code. The complaint was filed on November 6, 2012 in federal district court in the Northern District of California. Fluidigm subsequently filed a related case in Singapore.
Fluidigm had charged that in certain advertising and associated campaigns in the single-cell market, NanoString improperly claimed it had conducted a study showing that its nCounter Assay is more robust and sensitive than Fluidigm’s BioMark HD System for single-cell gene expression analysis.
NanoString based these claims on what it described as a “head to head” comparison of the nCounter system and Fluidigm BioMark HD System, but in fact this study was not a true head-to-head comparison study and Fluidigm believes was not conducted in a scientifically valid manner. The testing was performed by different laboratories, at different times, and using different sample preparation protocols. Among other differences, NanoString used a two-step sample preparation protocol for its nCounter system, while disadvantaging the Fluidigm BioMark HD System with a non-preferred one-step protocol.