Arbutus, Genevant reject Moderna’s vaccine patent defence

Moderna’s bid to avoid a COVID-19 patent claim has been rejected by two pharma companies that are suing the vaccine manufacturer for infringing its drug delivery technology.

In a court case heard on June 3 in the US District of Delaware Court, Arbutus Biopharma and Genevant Sciences shunned Moderna’s earlier request made on May 6 that the court toss patent claims on the basis of the Section 1498 US statute, which aims to protect federal contractors.

The plaintiffs, however, argue that “sales of Moderna’s vaccine to the government were for the benefit of the individual vaccine recipients, not the government itself”.

Arbutus and Genevant are claiming royalties from Moderna relating to sales of the vaccine to the US government. In a case heard in the Delaware court in February this year, the plaintiffs argued that Moderna used its messenger ribonucleic acid (mRNA) in its COVID-19 vaccine, without which its success would not have been possible.

Section 1498 states that remedy for patented inventions “used or manufactured by or for the United States without licence”, should be sought via action against the US in the US Court of Federal Claims.

Protection for patent owners

Essentially, the law is designed to protect patent owners from claims levelled at them by contractors of the US. In Moderna’s case, it was granted $483 million from the US government to develop the coronavirus vaccine and subsequently had been supplying doses of the vaccine to the US government during the pandemic.

Moderna has requested that the case should proceed in the Court of Federal Claims, against the US government.

The plaintiffs argue that Moderna infringed their patented technology without seeking permission, despite being aware of the patents in suit.

The technology in question is a lipid nanoparticle (LNP) delivery platform, which revolutionised the way medicines such as Moderna’s COVID-19 vaccine deliver mRNA safely and effectively to cells in the human body.

The delivery platform instructs cells to make proteins they would not necessarily make on their own and therefore enable the body to fight the virus.

In July 2020, Moderna lost an attempt to revoke an Arbutus patent, which Moderna claimed would be a potential obstacle to the company’s vaccines programme.

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