Over the past nine months, Moderna, Inc. and Pfizer Inc., have raced to find a cure for COVID-19 – the global pandemic that has plagued our world. Now, these two companies have created a cutting-edge vaccine using mRNA technology, in record-breaking time, and both companies are looking to win broad patent protection for the future of mRNA vaccines.
As the pandemic continues, the companies are unlikely to enforce aggressively any mRNA patents that they may secure. However, these companies’ patents will give them market-control as competitors eye mRNA vaccine development for other treatments.
According to University of Illinois College of Law professor Jacob S. Sherkow, “[p]rior to the development of their vaccines, [mRNA] was a completely untested, unchartered mechanism of action for a vaccine, so it seems like Moderna and Pfizer are on track to get a bunch of pretty broad patents covering mRNA vaccines generally. Some of the intellectual property foundations that are being laid now are going to play an increasingly important role with respect to the development of vaccines in the future.”
Alston & Bird LLP partner Matthew W. Howell said that Section 101 of the Patent Act will not likely provide patent eligibility for the vaccine’s genetic code, but the delivery systems the companies are using should be.
**Vaccine delivery systems are generally particulate, e.g. emulsions, microparticles, iscoms and liposomes, and mainly function to target associated antigens into antigen presenting cells (APC), including macrophages and dendritic cells.
The companies are likely to cash out on these delivery systems in the long run, as any company hoping to use mRNA technology will probably need licenses from Moderna and Pfizer.
In the short term, Moderna’s patents face some uncertainty. As we blogged about in early September, two federal agencies are currently investigating whether Moderna’s patents featured proper funding disclosures. Additionally, Moderna recently lost a bid to invalidate an Arbutus Biopharma Corp. patent covering certain technology allegedly used in its vaccine, although it had previously won two other patent suits against Arbutus.
“I think that’s what Moderna is really concerned about — not what’s going on now, but further applications of the platform technology they’ve developed or co-developed,” said Saint Louis University School of Law professor Ana Santos Rutschman. “It’s the post-COVID landscape that we’re already looking at.”