Aug 26, 2022 - Economy

Moderna aims to corner mRNA vaccine market with Pfizer lawsuit

Illustration of a scale on top of a syringe

Illustration: Sarah Grillo/Axios

Moderna’s decision to sue Pfizer and BioNTech over alleged COVID-19 vaccine patent infringement punctuates their turf war over technology poised to shape the future of immunization.

Why it matters: The mRNA technology underpinning the Pfizer and Moderna COVID vaccines — which are notably similar in substance and effectiveness — is viewed as a catalyst for the development of other potentially groundbreaking vaccines.

Driving the news: Moderna — which had previously vowed not to enforce its patents during the pandemic — announced the lawsuit Friday morning, accusing Pfizer of copying its technology.

  • The company is seeking monetary damages but said it's not asking for Pfizer's vaccine to be removed from the market. It's also not seeking damages for sales prior to March 8, 2022, or for gains from vaccine distribution in 92 low or middle-income countries.

What they're saying: "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," Moderna CEO Stéphane Bancel said in a statement.

The other side: Pfizer and BioNTech said Friday in a statement that "we remain confident in our intellectual property" and "will vigorously defend against the allegations," Axios' Mark Robinson and Adriel Bettelheim report.

Quick take: The patent infringement lawsuit is about the past, but its biggest impact could be on the future — because mRNA technology is a platform that enables the development of vaccines for all sorts of conditions.

  • Moderna and Pfizer each have a slew of mRNA vaccines under development, including Moderna's for HIV and Pfizer's for Lyme disease.
  • "They’re trying to protect the franchise," Erik Gordon, a University of Michigan business professor, lawyer and expert on the pharmaceutical industry, tells Axios. "They do want money — but I think the bigger money is money they hope to get in the future based on this platform."

Yes, but: Moderna will have to prove that its rights are being violated.

  • In 2020, the company said in financial filings it "cannot be certain that we were the first to make the inventions claimed in our patents or pending patent applications" — including the company's then-experimental coronavirus shot.
  • And Gordon noted that patents can be invalidated when it's later discovered that competitors developed the technology first.
  • Moderna is itself facing lawsuits from biotech companies Arbutus and Genevant over key elements of its technology, Stat News reports.

What's next: The patent case is fairly straightforward and could be resolved by 2024, Jacob Sherkow, an intellectual property expert at University of Illinois’s College of Law and College of Medicine, told Stat.

  • "The idea that there would be this Westphalian peace among the oligopolies that are the vaccine producers and that would last forever, I think, was just wholly unrealistic,” Sherkow said.

The bottom line: The race to develop a COVID vaccine is over. The race to determine who reaps the most financial gains has just begun.

  • "A blockbuster product people will litigate to the death," Gordon said. "A platform, like mRNA, is 10 times more valuable. So the drug companies can afford to spend tens of millions of dollars litigating — and have to spend tens of millions of dollars litigating — because the stakes are so high."
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