Moderna sues Pfizer, BioNTech over Covid vaccine despite pledge


Angelica Peebles August 30, 2022 at 6:45 AM EDT

Moderna shocked, well, pretty much everyone when it filed suit against Pfizer and BioNTech late last week, saying the pair used Moderna’s patented technology without permission in their Covid-19 vaccine.

The mRNA vaccines in question made all three companies heroes of the pandemic when the shots started rolling out in late 2020, allowing us to begin creeping out of hiding after more than a year of sequestering ourselves in the face of Covid. At the time, it wasn’t so much a competition for market share as it was a race to see who could pump out enough shots fast enough to vaccinate the world — and of course make billions while doing so.  

Now Moderna claims Pfizer and BioNTech deliberately copied key elements of Moderna’s mRNA technology when developing their Covid shot. Pfizer and BioNTech have denied the allegations and say they will defend themselves. 

The question everyone keeps asking is, why now? And what does Moderna hope to accomplish, since it’s only asking for a cut of the profits, which could be tiny compared to the billions of dollars it’s already made from the pandemic? Moderna says it needs to protect the mRNA technology platform it spent a decade and billions of dollars creating. Its company name, after all, is a portmanteau of modified and RNA. Moderna has built its brand all around being the frontier of mRNA tech. 

Suing is a classic strategy companies use when they want to pressure another company into licensing their technology, says Jorge Contreras, a law professor at the University of Utah. It’s possible, he says, that Moderna has been trying to prod Pfizer and BioNTech into such an agreement for some time to no avail. 

But Moderna may have a pretty big problem on its hands: Two years ago, the company said it wouldn’t enforce its patents during the pandemic. A so-called “patent pledge” is viewed as a contract under the law, says Contreras, who’s an expert in patent pledges. 

“I think they are trying to rewrite history here,” Contreras says. 

Earlier this year, Moderna tried to tweak its promise, saying instead that it would not enforce its patent in lower-income countries, many of which have struggled to get sufficient quantities of vaccines. But that doesn’t erase the original pledge, Contreras says.

One reason Moderna may be trying to flip the script now, he says, is that Moderna simply didn’t anticipate the pandemic to drag on this long. But it’s also not up to the company to decide when it’s over. 

Whatever the reasoning, resolving the lawsuits may mean a long and ugly fight between three pandemic heroes. — Angelica Peebles

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