News and Views
MODERNA SUING PFIZER, AND BIONTECH – THE WHY, WHERE, WHAT AND LESSONS TO BE LEARNT
On Friday, 26 August 2022, Moderna announced that it is suing Pfizer and BioNTech for alleged patent infringement of its mRNA vaccine technology. On the same day, BioNTech published the following statement on its website: “BioNTech is aware of reports that Moderna has sued Pfizer and BioNTech, alleging that COMIRNATY® infringes certain Moderna patents. BioNTech’s work is original, and we will vigorously defend against all allegations of patent infringement.”
Why Moderna is suing Pfizer and BioNTech
In October 2020, Moderna pledged not to enforce its COVID-19-related patents while the pandemic continued. However, according to Moderna, in March 2022, the collective fight against COVID-19 entered a new phase and vaccine supply is no longer a barrier to access in many parts of the world.
Moderna’s chief executive officer Stephane Bancel states, “We are filing these lawsuits to protect the innovative mRNA technology platform that we pioneered, invested billions of dollars in creating, and patented during the decade preceding the COVID-19 pandemic.”
Moderna’s Chief Legal Officer Shannon Thyme Klinger said: “We believe that Pfizer and BioNTech unlawfully copied Moderna’s inventions, and they have continued to use them without permission.”
In which countries Moderna has instituted proceedings against Pfizer
On 26 August 2022, Moderna filed patent infringement lawsuits against Pfizer and BioNTech in the United States District Court for the District of Massachusetts and the Regional Court of Düsseldorf in Germany.
Moderna’s above statement has made it clear that it would never enforce its patents for any COVID-19 vaccine used in the 92 low- and middle-income countries in the GAVI COVAX Advance Market Commitment (AMC 92).
What is Moderna claiming from Pfizer and BioNTech?
Moderna is seeking unspecified damages in both the United States and Germany. More specifically, in the United States, Moderna is seeking damages for revenue that Pfizer and BioNTech derived from sales in the United States (that are not subject to 28 U.S.C. § 1498) and from its domestic manufacture for supply to countries outside the United States. Moderna is not seeking damages for activities occurring before 8 March 2022.
What can be learnt from this?
First, before you start manufacturing something new, it is advisable to consult a patent attorney to assist you with determining if there are any existing intellectual property (IP) rights which may stand in your way.
Secondly, if any IP rights cover your new product, enter into a written agreement with the IP rights holder.
Kobus du Raan
Senior Associate
Attorney
Patent Department
Email: kobusd@kisch-ip.com
Tel: +27 10 510 3490
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