According to court documents, Moderna plans to use its government contract to shield itself from attacks by Arbutus Biopharma and Roivant’s Genevant Sciences over its COVID-19 vaccine.
Arbutus and Genevant filed a lawsuit against Moderna in February of this year seeking damages, claiming Moderna infringed upon six of their patents with the production and sale of its COVID-19 vaccine Spikevax. Moderna's vaccine revenues were around $17.7 billion in 2021, and it expects that number to increase to around $21 billion in 2022.
Moderna, for its part, said it plans to show that Spikevax does not infringe on any valid patents, let alone those held by Arbutus and Genevant.
But, Moderna said in a filing at the U.S. District Court for Delaware, the Spikevax dispute is not the immediate problem. Rather, the problem is that the plaintiffs should have sued the U.S. government instead.
Moderna cited a federal law once used to “prevent patent infringement suits from interfering with the supply of war materials during World War 1,” and explained that it supplied its COVID-19 vaccine to the government as part of the nation’s emergency pandemic response.
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.’”
Arbutus and Genevant do not wish to prevent Moderna from selling or distributing its shot. Instead, according to the original lawsuit filing, 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.”
This is not the only time the biotech company has been sued over its COVID-19 vaccine. In March, Alnylam sued both Moderna and Pfizer in separate lawsuits claiming the companies used a delivery technology for their shots that it says it invented more than a decade ago. Alnylam is also seeking damages and does not wish to stop the production of the vaccines.