The lawsuit is overdue but difficult: Tübingen-based biopharmaceutical company Curevac is suing vaccine maker Biontech, whose coronavirus vaccine has earned a Mainz-based company billions in profits over the past year and a half. Curevac said Biontech has infringed “its intellectual property rights from over two decades of pioneering mRNA technology.”
In fact, Curevac scientists, led by founder Ingmar Hoerr, along with others, came up with the basic principles of mRNA technology on which the development of Biontech and Moderna vaccines is based, which did not perform preliminary work on this scale. Nevertheless, Curevac lost touch in a short time. Last year, Biontech grossed over ten billion euros – a fantastic margin when you look at sales of around 19 billion euros. All of this with the Corona Comirnata vaccine as a hit.
The situation in Curevac is completely different. The company continues to suffer from failure to develop an mRNA-based Covid vaccine as well. In the fall of 2021, the Tübingen-based company withdrew its first vaccine candidate and withdrew its application for approval. Since then, Curevac has been working with the British pharmaceutical company Glaxo Smith Kline (GSK) to develop a new Covid vaccine. Another vaccine will not be easy either. After all, for the necessary clinical trials, it would be optimal if the vaccine could be tested in people who have not been in contact with the virus or the vaccine. Since almost all people in Europe and North America have either been vaccinated several times or have recovered, this is difficult to achieve.
Curevac is still losing millions
And so Curevac continues to record losses, albeit not that high. The first quarter saw a loss before tax of € 15.2 million (2021: 112.2 million). After all, sales rose to 24.4 million euros (same period last year: ten million). CFO Pierre Kemula, presenting quarterly data, said they were focusing on keeping costs under control – it didn’t sound like much optimism.
In this situation, the money that Curevac could receive from an out-of-court settlement with Biontech would be just right. At least the Tübingen-based company has made it clear in its first lawsuit notification that it is not seeking a court order and also does not intend to “take legal action that would impede the production, sale or distribution” of the Biontech vaccine. Against this background, one should also look at the moment of filing the statement of claim. Curevac did not want to jeopardize the success of the vaccination campaign at the height of the pandemic. Instead, researchers in Tübingen view the rapid development of the vaccine “as a tremendous achievement that has had a profoundly significant impact on global public health,” according to the company’s announcement. Apparently, there was some kind of non-aggression pact between the companies at the beginning of the pandemic. The highest priority was to develop a vaccine as soon as possible.
Curevac notes that patent rights have been infringed in four cases in particular. These are the details of the technical production of mRNA molecules, for example modifications to the mRNA sequence which increase the stability of the active ingredient and the yield of the proteins needed for the vaccine. The vaccine formulation, which is specific to the Sars-CoV-2 vaccine, is also largely based on preliminary work by Curevac. Curevac CEO Franz-Werner Haas did not say how much the company foresees as “fair compensation” for “pioneering work” in mRNA development.
There is no agreement
It looks like an agreement has not yet been reached. The company’s work is “original and we will vigorously defend it against any allegations of patent infringement,” said Biontech. After the success of the Biontech vaccine, it’s not uncommon for other pharmaceutical companies to claim that the vaccine may infringe their intellectual property rights.
For example, the US pharmaceutical company Alnylam is suing for its use of LNP (Lipid Nanoparticle) technology, which is used in Biontech / Pfizer vaccines, but also at Moderna, to transport and deliver genetic material to the body. In 2020, San Diego-based Allele Biotechnology and Pharmaceuticals went to court, alleging patent infringement against Biontech / Pfizer. The companies later agreed “satisfactorily,” they announced.