Moderna secures COVID-19 vaccine delivery win before appeals court
Biotech fails to convince Federal Circuit to overturn PTAB finding | Invalidation of patent related to “Non-liposomal systems for nucleic acid delivery”.
The US Court of Appeals for the Federal Circuit has sided with Moderna in the drugmaker’s dispute with Arbutus Biopharma over COVID-19 vaccines.
In a precedential decision handed down yesterday, April 11, the Federal Circuit affirmed the invalidation of Arbutus’s US patent number 9,404,127, which covers “Non-liposomal systems for nucleic acid delivery”.
The purpose of the patent is “to allow for more efficient methods and compositions for introducing nucleic acids into cells and methods of down-regulating gene expression”.
The appeals court upheld the US Patent Trial and Appeal Board’s (PTAB) finding that claims 1–22 of the patent were invalid as they were anticipated by Arbutus’ earlier patent.
Moderna had filed a petition for inter partes review (IPR) of the ‘127 patent and, in 2019, the PTAB invalidated the patent.
“We hold that the board’s finding that independent claim 1 and its morphological property are inherently anticipated by the disclosures of the ‘069 patent and its incorporated references is supported by substantial evidence, and that the board properly found dependent claims 3 and 8–12 anticipated,” said the Federal Circuit.
COVID-19 vaccine patents
Arbutus, along with Genevant Sciences, has asserted other related patents against Moderna in a suit centred on COVID-19 vaccine patents. In March last year, the duo sued Moderna over royalties from the sales of its COVID-19 vaccine, which allegedly uses their tech for a drug-delivery system without authorisation.
Earlier this year, the US government waded into the dispute, urging the US District Court for the District of Delaware to throw out the patent infringement claims.
According to the government, Moderna had governmental “authorisation and consent” to manufacture and use inventions covered by US patents to produce a COVID-19 vaccine and was therefore shielded from patent litigation.
However, in March, the Delaware court ruled that Moderna had not yet demonstrated that the US government should have been sued instead.
