ModernaTX, Inc. et al. v. Pfizer Inc. et al. (D. Mass. 22-cv-11378).

Pharmaceutical company Moderna filed suit against Pfizer and Biontech, accusing them of infringing three patents relating to their Covid vaccines.  Moderna says it was founded in 2010 to develop messenger RNA (“mRNA”) technology and medicine, and that it conducted “foundational research” in all aspects of mRNA technology, including issues with the body’s immune system attacking mRNA treatments.  Moderna discovered a specific modification to mRNA molecules that significantly avoided the provocation of the immune response.  Moderna filed a series of patent applications covering aspects of its technology, which at the time formed Moderna’s most valuable assets- Moderna had no commercial products at the time. 

When the Covid pandemic hit, Moderna had been working with the National Institutes of Health on developing a MERS vaccine.  Moderna diverted virtually its entire workforce to the rapid development of a Covid vaccine, which entered clinical trials in March 2020. The Moderna vaccine proved 94% effective against infection by the then-circulating Covid strain, much higher than other proposed vaccines. 

Moderna says that Pfizer and BionTech each utilized Moderna’s patented technology to develop mRNA vaccines.  The two companies considered alternative technologies, and brought four different candidates to clinical trials, but ultimately chose to proceed using candidates developed using Moderna’s technology.  Moderna specifically asserts that Pfizer and BionTech’s vaccines utilized the same chemical modification that Moderna developed to reduce immune responses to the vaccine and that the vaccines encoded for the same particular Covid protein that the Moderna did.

Moderna voluntarily pledged in October 2020 that it would not enforce Covid-related patents against vaccine makers “ while the pandemic continues,” but state that my early 2022, Covid had entered an endemic phase and vaccine supply was no longer a barrier to access in much of the world.  In light of the changed circumstances, Moderna announced in March that it expected companies to respect its intellectual property and that it would consider commercially reasonable licenses on request.  It further committed to avoid enforcement for any vaccines used in the 92 low and middle income countries in the Gavi COVAX Advance Market Commitment.  Despite offering a license, Moderna was not contacted by Pfizer or BionTech.

Moderna points out that it is not seeking injunctive relief, so that there is no strain on the availability of Covid vaccines; that it was not seeking pre-March 2022 damages; and that it was not seeking damages on sales to the Gavi 92 low and middle income countries.  Moderna notes, however, that Pfizer and BionTech have provided over 472 million doses of their Covid vaccines in the Untied States alone, and that Pfizer has reported $7.8 billion in revenues from sales of its vaccine in the U.S. in 2021 and an expected additional $32 billion in global revenue for 2022, all (according to Moderna) based on Moderna’s patented technology.