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Moderna plans to sue Pfizer for patent infringement over COVID-19 vaccine technology

Patent litigation is common in the early stages of medical technology development, and Moderna is not asking for the rival vaccine to be pulled from the market.
Credit: AP
FILE - Syringes and a vial of the Moderna COVID-19 vaccine are displayed at a mass COVID-19 vaccination site in Batavia, Ill., on March 19, 2021. (Rick West/Daily Herald via AP, File)

WASHINGTON — Moderna is suing fellow vaccine-makers Pfizer and BioNtech over claims that their COVID-19 vaccine infringes on patents Moderna filed before the pandemic, the company said in a statement. 

The lawsuit, which has not been filed in the U.S. as of Friday morning, contends that Pfizer and BioNtech infringed on several patents, filed by Moderna between 2010 and 2016, when the two companies worked together to make a COVID-19 vaccine as the pandemic spread in 2020. 

The patents are related to "foundational mRNA technology" developed by Moderna, the company said. 

Moderna said that technology was critical in developing their own vaccine, sold under the name Spikevax. The company accuses the Pfizer-Biontech vaccine, called Comirnaty, of copying that technology. 

"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," said Moderna Chief Executive Officer Stéphane Bancel in a statement.

In an email, Pfizer said they are "surprised" by the litigation and pushed back against claims that they had used technology pioneered by Moderna.

"Pfizer/BioNTech has not yet fully reviewed the complaint but we are surprised by the litigation given the Pfizer/BioNTech COVID-19 Vaccine was based on BioNTech’s proprietary mRNA technology and developed by both BioNTech and Pfizer," a representative said in an email. "We remain confident in our intellectual property supporting the Pfizer/BioNTech vaccine and will vigorously defend against the allegations of the lawsuit."

Early in the pandemic, Moderna said it would not enforce its COVID-19 patents to help the development of vaccines, especially for low and middle-income countries. 

But the company has since changed its stance, saying that as the world enters a new phase of the pandemic where the supply of vaccines appears adequate for many countries, it expected Pfizer and BioNTech to "respect its intellectual property rights" and discuss buying a "commercially reasonable license" to use the mRNA technology in vaccines for markets such as the U.S. 

The U.S. Food and Drug Administration granted emergency use authorization to both Moderna and Pfizer-BioNTech in December 2020, within a week of each other.

Moderna, based in Cambridge, Massachusetts, has been an innovator in the mRNA vaccine technology field. That technology was instrumental in the rapid development of vaccines within a year of the COVID pandemic. 

BioNTech, another company working in the field, partnered with U.S. drug-making giant Pfizer to develop their own vaccine. 

Patent litigation is not uncommon in the early stages of medical technology development. Pfizer and BioNTech are also facing several other lawsuits from companies saying the pair's vaccine infringes on their patents, including a German company, CureVac. 

Moderna has also been sued for patent infringement in the U.S. for its COVID-19 vaccine, and is in ongoing litigation with the U.S. National Institutes of Health over the rights to mRNA technology. 

Because of the ongoing danger from COVID-19, Moderna said it would not be asking for the Comirnaty vaccine to be taken off the market or for an injunction against future sales. 

The company said the would also not pursue damages in specific circumstances, including the sale of Pfizer vaccines in 92 low or middle-income countries, when "the U.S. government would be responsible for any damages" or any activities before March 8, 2022. 

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