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Reopening IP Squabble with Benitec, Nucleonics Seeks Rehearing by Federal Court

NEW YORK (GenomeWeb News) - Nucleonics has filed a petition with the US Court of Appeals for the Federal Circuit to rehear its appeal of an RNAi intellectual property lawsuit with Benitec Australia that had been dismissed in 2005 by a US District Court in Delaware.
Nucleonics appealed that dismissal, filing counterclaims of invalidity and unenforceability, but the decision to dismiss was upheld recently by a three-judge panel in a US Federal Circuit Court. The company now seeks to have the Federal court hold a rehearing en banc, which would involve the full group of judges on the court.
The dispute began in 2004 when Benitec sued Nucleonics and two other companies for allegedly infringing US Patent No. 6,573,099, entitled "Genetic Constructs for Delaying or Repressing the Expression of a Target Gene."
Benitec later asked the court for a dismissal, on the grounds that a US Supreme Court decision in an unrelated case -- Merck vs. Integra -- effectively brought Nucleonics' activities within the bounds of a “safe harbor” exemption.
The Circuit Court's recent decision to uphold the dismissal appeared to have closed the case, but Nucleonics said today the appeal was "wrongly decided" and the company "seeks reconsideration by the panel of the entire Federal Circuit."
Nucleonics also said today that if the Federal Circuit court does not grant a rehearing en banc the firm has the option of applying to the US Supreme Court to review the case.

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