"Moderna Inc. is trying to fend off rival companies' claims that its Covid-19 vaccine infringes their patents, arguing that the companies may only pursue their claims seeking royalties from the federal government.
Moderna on Friday filed a motion to dismiss some of the patent-infringement claims in the lawsuit, which was filed in February by two small biotechnology companies, Arbutus Biopharma Corp. and Genevant Sciences GmbH, in federal court in Delaware.
It is the latest move in the legal battles that are breaking out among companies and the government over patents surrounding Covid-19 vaccines.
Arbutus and Genevant claimed in their lawsuit that Moderna's vaccine has components covered by their patents, and they are seeking royalties from the multibillion-dollar sales of Moderna's vaccine.
The patents cover tiny substances called lipid nanoparticles, which encase the genetic material messenger RNA in the vaccine and help get into human cells once injected.
Moderna, of Cambridge, Mass., says its vaccine doesn't infringe the patents and that it uses its own proprietary lipid nanoparticle technology.
Moderna said in the new court filing that even if it had infringed the patents, federal patent law protects government contractors from certain patent-infringement lawsuits. A section of the law requires that a patent holder must file a claim against the U.S. in the U.S. Court of Federal Claims if the patent holder believes that a product manufactured for the government by a contractor infringes the patent.
Genevant said it would oppose Moderna's motion to dismiss the patent claims. "Rather than respond to the substance of our claims, Moderna is trying to shift responsibility for its patent infringement to the U.S. taxpayer," Genevant said.
The provision of the federal patent law usually applies to defense contractors and not pharmaceutical companies, since the U.S. government isn't typically the sole, direct purchaser of drugs and vaccines.
But during the Covid-19 pandemic, the federal government has been the only U.S. purchaser of doses of Moderna's Covid-19 vaccine for use in the U.S., and has distributed them at no cost to vaccine recipients since late 2020. In 2021, Moderna delivered 332 million vaccine doses to the government for distribution and recorded $5.4 billion in U.S. revenue.
Moderna wants a judge to dismiss the lawsuit's claims seeking royalties on the sale of its Covid-19 vaccine doses to the U.S. government.
"This law provides an important statutory protection for authorized government suppliers and played a critical role in encouraging companies, including Moderna, to step up and help the Government fight the Covid-19 pandemic," Moderna said.
In addition to the vaccine supply contracts, Moderna has received at least $1.7 billion from the federal Biomedical Advanced Research Development Authority to fund the development of the vaccine, according to a securities filing.
Moderna also collaborated closely with National Institutes of Health scientists in the design and testing of its Covid-19 vaccine.
The company drew criticism last year when it declined to name NIH scientists as inventors on a company application for a U.S. patent for its vaccine. Moderna subsequently dropped that patent application, saying it valued its cooperation with the NIH." [1]
1. U.S. News: Moderna Seeks to Dismiss Patent Suit
Loftus, Peter.
Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]. 07 May 2022: A.5.
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