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Benitec, Promega Head for Mediation on June 15; Court Outlines Requirements

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A mediation conference between representatives of Benitec and Promega has been set for this summer, according to documents filed with the US District Court for the District of Delaware.

The two companies have been embroiled in a legal dispute over an exclusive license to Benitec's expressed RNAi technology, termed DNA-directed RNAi, since July 2004 (see RNAi News, 7/30/2004). In court filings, Benitec alleges that Promega's failure to meet royalty payment obligations has made non-exclusive its originally exclusive license to use and sublicense the ddRNAi technology in areas outside human therapeutics. Promega has maintained that its exclusive license remains intact.

In January, as the case made its way through the courts, Benitec experienced a management shake-up that saw CEO John McKinley resign and COO Sara Cunningham step in to fill the leadership position (see RNAi News, 1/21/2005). Since then, Cunningham has taken steps to move away from the litigiousness that had been closely associated with Benitec, including publicly stating that the company was looking to resolve its differences with Promega (see RNAi News, 3/25/2005).

As reported by RNAi News, the dispute between Benitec and Promega was recently referred to mediation (see RNAi News, 4/15/2005). According to an April 18 court filing, a mediation conference has now been scheduled for June 15 with a magistrate judge.

"The trial attorneys and those who are familiar with the case, and their respective clients and/or decision makers, who must include individuals with full authority to act on behalf of the parties, including the authority to negotiate a resolution of the matter, must be present" at the conference, the document states. "In addition, under separate cover, the direct-dial telephone work numbers and cell or home numbers of in-state and out-of-state counsel who will be attending the mediation shall be provided to the magistrate judge."

The document indicates that both Benitec and Promega must supply the magistrate judge with mediation conference statements by June 6. The statements are to include a description of the parties; a background on the situation and the dispute; a summary of the law; an "honest" discussion of the legal claims and defenses including "the strengths and weaknesses of the party's position;" a history of settlement negotiations and an assessment of why a resolution has not been reached; and pertinent documents and evidence.

The statements are not to be shared by Benitec and Promega, and they are to be made publicly available as they are not part of the court record, the court filing indicates.

— DM

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