It recently emerged in the news that the American company Moderna Therapeutics had taken legal action against competitor Pfizer, as well as its German partner BioNTech, for patent infringement.
The alleged infringement concerns mRNA technology developed by Moderna and patented in 2010 and 2016 and which, according to Moderna, was used by Pfizer and BioNTech for the development of their vaccine against Covid-19 (called Comirnaty).
To better understand the conflict, it is necessary to understand how the patent system works. In social terms, this can be thought of as a “social contract” between the State and the inventor: in exchange for the information about the invention being made public (and thus society having access to this information), as well as for the research effort , the state grants a monopoly to the inventor for (usually) 20 years. This monopoly implies the withdrawal of competition during the years of exclusivity and the imposition by pharmaceutical companies of prices that approximate, in economic terms, monopoly prices.
The system is intended to promote continuous investigation. In the case of the pharmaceutical industry, they will only have an incentive to invest millions of euros in innovation, if they have the prospect of recovering the investment through their monopoly.
Obviously, all innovation (we would say the whole creative process) rests “on the shoulders of giants”, that is, as the French philosopher Bernardo de Chartres said, the truth is discovered from previous discoveries. However, within the scope of the present process, the alleged use of previous technology to create an innovative result (a new vaccine for Covid-19) is precisely at stake. The problem is that the technology in question was patented in 2010 and 2016 and the right remains in force, so its use requires the consent of the holder. The mRNA technology was, moreover, very important for the development of Moderna’s own vaccine, Spikevax.
The essential question is whether this litigation will have consequences for Pfizer’s Covid-19 vaccine. Will it have to be withdrawn from the market? In theory, this could happen. The exclusive patent right allows the holder to prevent the commercialization of technology that infringes his right, which, if it happens, could affect the commercialization of the vaccine and access to it worldwide. It is interesting to note, however, that Moderna has already made it known through the media that this is not what it wants. For reasons of ethical imperative, social responsibility or public image, the company states that it only seeks to be rewarded with a part of its competitor’s profits, given that these were obtained at the “cost of the efforts of others”.
There are, however, doubts about Moderna’s good intentions. First of all, for lack of consistency. In another lawsuit in which it is an infringer – that is, it is accused of infringing patents to develop its vaccine against covid-19 -, Moderna alleges that such use took place under a legal clause that allowed the use of patents in public emergencies like the pandemic.
There is some fear that Moderna’s attitude could send the wrong signal to the market and inhibit the development of new innovations based on mRNA technology, which has proved to be of paramount importance in the fight against the covid-19 pandemic and whose application has been designed to other pathologies.
Legal Director at Inventa