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Patent Infringement in the COVID-19 Pandemic: mRNA Vaccines Take Center Stage

by | Mar 17, 2022 | Blog, Patent | 0 comments

On February 28, 2022, Arbutus Biopharma Corporation and Genevant Sciences GmbH (collectively the “Plaintiffs”) sued Moderna, Inc. and ModernaTX, Inc. (collectively “Moderna”) in the U.S. District Court for the District of Delaware, alleging Moderna had infringed upon six of Plaintiffs’ issued patents in the creation of its COVID-19 mRNA vaccine. This suit marks the first major patent infringement action in the now-rapidly developing landscape of mRNA vaccines.

In its complaint, Plaintiffs alleged, inter alia, that Moderna was able to produce its mRNA vaccine for COVID-19 in “record speed” because it unlawfully used the technologies in U.S. Patent Nos. 8,058,069, 8,492,359, 8,822,668,  9,364,435, 9,504,651, and 11,141,378, which are collectively directed to a lipid nanoparticle (“LNP”) delivery platform that aids in the uptake of specific mRNA sequences into human cells (and without which the uptake of such sequences and eventual production of important proteins would be stymied by the human immune system). Furthermore, the complaint alleges that Moderna was “well aware” of Plaintiffs’ issued patents, as it had “licensed them for other product programs . . . but chose not to do so for its COVID-19 vaccine,” and unsuccessfully “attempted to invalidate several of [Plaintiffs’] patents” through inter partes review (IPR) proceedings.

Plaintiffs did not seek a preliminary injunction—as they claimed they did not want to “impede the sale or manufacture of Moderna’s life-saving vaccine”—but rather only requested damages, stating that “[a]ll Plaintiffs seek is the compensation due to them under the patent laws of the United States and as a matter of simple fairness.” If Plaintiffs prove to be successful in their suit, the resulting damages could total in the tens of billions of dollars.

This case is Arbutus Biopharma Corp. et al. v. Moderna, Inc. et al., Case No. 1:22-cv-00252. The complaint can be found at the following link: https://fingfx.thomsonreuters.com/gfx/legaldocs/zgpomzkbzpd/IP%20MODERNA%20PATENTS%20complaint.pdf