In its COVID-19 vaccine patent kerfuffle with Arbutus Biopharma and Roivant’s Genevant Sciences, mRNA hot shot Moderna aims to shield itself with its government contract, court documents filed Friday show.
Plaintiffs Arbutus and Genevant sued Moderna back in February, seeking damages tied to six patents they claim Moderna infringed with the production and sale of its COVID-19 vaccine Spikevax.
In its new response, Moderna said it plans to show that Spikevax doesn’t tread on any valid patents, including those held by the plaintiffs Arbutus and Genevant. But the company says "that dispute is for later."
The immediate problem is that the plaintiffs should have sued the U.S. government instead, Moderna said in a filing at the U.S. District Court for Delaware. To back up its argument, Moderna cited a federal law once used to “’prevent patent infringement suits from interfering with the supply of war materials during World War 1.'”
Moderna explained that it supplied its COVID-19 vaccine to the feds as part of the nation’s emergency response to the pandemic. It's "difficult to conceive of a situation more within the heart" of the wartime law than the pandemic, the company argued.
“In that contract, the Government expressly invoked its sovereign authority to ‘authorize and consent to all use and manufacture … of any invention described in and covered by a United States patent,’” Moderna argued.
Moderna and Arbutus did not immediately respond to Fierce Pharma’s request for comment on the update.
Importantly, Arbutus and Genevant don’t want to stop Moderna from selling or distributing its shot.
“We’re not seeking an injunction and … we do not wish to impede in any way Moderna’s COVID-19 vaccine from reaching as many people as possible,” Matthew Gline, CEO at Roivant, said on a conference call in February.
Instead, the companies are pursuing damages “sufficient to compensate Arbutus and Genevant for Moderna’s infringement … in no event less than a reasonable royalty on all infringing sales," the original lawsuit filing states.
Meanwhile, Arbutus and Genevant aren't the only ones crying infringement against Moderna. Alnylam in March sued both Moderna and Pfizer in separate lawsuits claiming the companies used a delivery technology for their shots that Alnylam says it invented more than a decade ago.
Like Arbutus and Genevant, Alnylam isn't attempting to halt production of the vaccines. It's seeking damages for the “defendants’ wrongful acts in an amount to be determined at trial," plus royalties.
Moderna's vaccine pulled down around $17.7 billion in sales last year. For 2022, the biotech expects revenues in the vicinity of $21 billion.