The Public Paid For Moderna’s mRNA Vaccine Tech; The Fact That Moderna Is Suing Over The Patent Is A Travesty

from the greedy dept

You may have heard last week that Moderna is suing Pfizer, claiming that Pfizer’s COVID vaccine violates Moderna’s patents. You can read the legal complaint which is full of bluster about how brilliant Moderna is and how it saved the world and blah blah blah. While it does mention that Moderna teamed up with the National Institutes for Health, it leaves out that it was the US taxpayer and US government employees who were critical in helping Moderna develop its mRNA technology.

We covered this last year when Moderna was trying to block US government scientists from even being listed on its patents. The fact is, Moderna doesn’t happen without massive taxpayer funding and massive support from US government scientists. Moderna has admitted that US scientists played a “substantial role” in the development. Indeed, as a NY Times report from last year noted, initially people were referring to it as the “NIH-Moderna COVID-19 vaccine,” and then Moderna took over the marketing, and basically cut the government out.

The vaccine grew out of a four-year collaboration between Moderna and the N.I.H., the government’s biomedical research agency — a partnership that was widely hailed when the shot was found to be highly effective. A year ago this month, the government called it the “N.I.H.-Moderna Covid-19 vaccine.”

The agency says three scientists at its Vaccine Research Center — Dr. John R. Mascola, the center’s director; Dr. Barney S. Graham, who recently retired; and Dr. Kizzmekia S. Corbett, who is now at Harvard — worked with Moderna scientists to design the genetic sequence that prompts the vaccine to produce an immune response, and should be named on the “principal patent application.”

Moderna disagrees. In a July filing with the United States Patent and Trademark Office, the company said it had “reached the good-faith determination that these individuals did not co-invent” the component in question.

So, already, Moderna’s narrative about how it’s just some little guy with a great invention is pretty sketchy. And we won’t get into just how much the US taxpayer paid the company as the US government (smartly) paid for the public to get vaccinated and protected from COVID.

Of course, Moderna knows this is going to come up, so it uses some weasel words to try to pretend this lawsuit isn’t about anything publicly funded. But read carefully:

This lawsuit does not relate to any patent rights generated during Moderna and NIH’s collaboration to combat COVID-19.

But, uh, the details above were from before COVID, when NIH scientists helped Moderna — playing a “substantial role” in crafting the underlying technology. Basically, all of the technology that was necessary to combat COVID. To say that it’s not using anything “generated during Moderna and NIH’s collaboration to combat COVID-19” cleverly cuts out all of the collaboration before 2020.

From there, Moderna insists that, really, people should view it as the good guy here, because — IN THIS COMPLAINT IN WHICH IT IS SUING OVER ITS COVID VACCINE — it notes that it promised not to sue over the COVID vaccine “during the pandemic.”

Given the unprecedented challenges of the COVID-19 pandemic, Moderna voluntarily pledged on October 8, 2020 that, “while the pandemic continues, Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic.”3

Moderna refrained from asserting its patents earlier so as not to distract from efforts to bring the pandemic to an end as quickly as possible.

Guess what? Apparently the pandemic’s over. At least according to Moderna’s execs who want to start shaking down other companies for cash.

So, now Moderna has a new rule: it won’t enforce its patents… in poor countries. Everywhere else is fair game.

My guess is that Pfizer is going to do the math here and probably pay up to get Moderna to go away. After all, Pfizer has long been a terrible abuser of the patent system, using it to jack up prices and limit generic competition from the marketplace. While that does mean that the company has some very knowledgeable patent litigators on speed dial, it also likely means that it doesn’t want to fight back too hard.

And that sucks, because for once, the COVID vaccines showed how well innovation works when patents aren’t really there to block anything (initially, that is). Multiple companies all scrambling to provide solutions, information sharing that allowed for more experimentation and incremental innovation. None of it requiring locking stuff up.

But Moderna is now in “fuck that, give me my money” mode, and showing, yet again, just how broken our patent system is.

Once again, I’ll remind everyone of Jonas Salk’s comments upon people asking him who owned the patent on his polio vaccine:

“Well, the people, I would say. There is no patent. Could you patent the sun?”

No, you can’t patent the sun, but it seems that the greedy jerks at Moderna would still try to patent it if they could.

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Companies: moderna, pfizer

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Comments on “The Public Paid For Moderna’s mRNA Vaccine Tech; The Fact That Moderna Is Suing Over The Patent Is A Travesty”

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Anonymous Coward says:

While the current system is definitely a travesty, this lawsuit is nothing special: medical companies ALWAYS release these lawsuits following “novel” product releases. Moderna just held off in this case until COVID optics were favorable.

The idea here from Moderna’s perspective is that if they don’t put forward the claim and get it all official in the legal system, other parties will start to abuse the system and Moderna will lose control of their IP.

This is even though that’s NOT how the patent system is supposed to work; that’s limited to use of trade marks.

Personally, I think Moderna’s suit is pretty reasonable as far as medical research lawsuits go. It’s the entire concept of publicly funded research being patentable in the first place that’s ludicrous.

anonymous says:

Patents and public institutions are a huge mess. Colleges get funding from private companies and from the government to do research. Then patents are filed on the new inventions, sometimes just by the college, sometimes by the private company, sometimes both. It all depends on the agreements between the parties.

On the one hand this results in odd things like colleges suing over patents that are based on government (i.e. Federal) funded research. Or, like this case, companies suing each other based on research that was partially government funded. This is a mess.

The other hand is that it results in a lot of amazing discoveries. Many core technologies that the modern world depends on came from research at these colleges, often research in partnership with large tech companies. This is one reason that the US and Europe led the world’s technological development for many decades. One of the big changes that China has made in order to catch up, was to encourage similar arrangements between colleges and companies (both Chinese companies and foreign ones).

I do think the laws should be changed but mostly because patents are just fundamentally broken at this point. Most of the patents I have are what I consider “obvious” and I wouldn’t have issued them if I was in charge. I’m not in charge, so my employer filed for the patents and they were issued.

Nemo_bis (profile) says:

Compulsory licenses now

Moderna is so brazen that at the same time it’s claiming in another court case that Moderna’s alleged infringement of patents is no big deal, as it got a compulsory license from the federal government.

The TRIPS waiver was a fiasco. The NIH should grant compulsory licenses on all patents relevant for COVID-19 which got NIH funding. Put all those silly lawsuits at rest and let the most efficient pharma companies do the work, rather than those with the most creative lawyers.

Anonymous Coward says:

Moderna’s genetic therapy syrup is not effective, else the incessant boosters (within the same year) – on top of the original shot, would actually prevent transmission. Or is it that the boosters can’t keep up with the frequent mutations?

Anyway, (per the CDC) if you want to be cured of Corona, just cross the US southern border (north bound for best results).

Anonymous Coward says:


“A few outlying anti-vax idiots, will eventually catch covid, and hopefully die.”

If Corona were that fatal for everyone, then the “vaccinated/boosted” would be dead also (e.g. Joe & Jill Bidden, Kamala Harris, Bill Gates, et al.) because they’re catching Corona also. Un”vaccinated”, “vaccinated/then boosted”, previously infected…they’re all getting infected, they’re all in the same boat, and they all better go jump in that Rio Grande to get healed! It’s not a vaccine, it’s genetic therapy, and it’s ineffective against Corona infection, Corona re-infection, and Corona transmission.

PaulT (profile) says:


“A few outlying anti-vax idiots, will eventually catch covid, and hopefully die”

Which is great, until you realise that there’s plenty of people who can’t take a vaccine for various reasons or who are generally immunocompromised who depend on herd immunity and other factors for protection.

I don’t care if someone chooses to take the risk and falls ill as a result. I care very much about their children or other innocent victims they take out with them.

glenn says:

Since it looks like you didn’t know: Moderna has been developing mRNA “tech” for more than 2 decades, with no particular investment from taxpayer funding (beyond some normal and small grants that just about anyone can get). Covid is simply the first large-scale use of it. It was the ramp-up to fight Covid that the govt. paid a lot to get going. (The name “Moderna” is “M[ode]rna” — cute, huh.)

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