The lawsuit comes late, but it is tough: The biopharmaceutical company Curevac from Tübingen is suing the vaccine manufacturer Biontech, whose vaccine against the corona virus has brought the Mainz-based company billions in profits over the past year and a half. Curevac says Biontech violated “its intellectual property rights from more than two decades of pioneering work in mRNA technology”.
In fact, Curevac researchers, led by founder Ingmar Hoerr, along with others, invented the basic principles of mRNA technology on which the development of Biontech and Moderna vaccines is based, which have not done preliminary work on this scale. Nevertheless, Curevac lost touch in a short time. Last year, Biontech made a profit of more than ten billion euros – a fantastic margin when you look at sales of around 19 billion euros. And all this with the Corona vaccine Comirnaty as a blockbuster.
The situation at Curevac is completely different. The company is still suffering from its failure to also develop an mRNA-based Covid vaccine. In autumn 2021, the Tübingen-based company gave up its first vaccine candidate and withdrew the application for approval. Since then, Curevac has been working with the British pharmaceutical company Glaxo Smith Kline (GSK) on a new Covid vaccine. It will not be easy for the successor vaccine either. After all, it would be optimal for the necessary clinical tests if the vaccine could be tested on subjects who had no contact with the virus or vaccination. Since almost all people in Europe and North America have either been vaccinated several times or have recovered, this is difficult to implement.
Curevac is still losing millions
And so Curevac continues to write losses, albeit not quite as high. In the first quarter there was a loss before taxes of 15.2 million euros (2021: 112.2 million). After all, sales rose to 24.4 million euros (same period last year: ten million). CFO Pierre Kemula said when presenting the quarterly figures that they were concentrating on further controlling costs – it didn’t sound like a great spirit of optimism.
In this situation, money that Curevac could receive from an out-of-court settlement with Biontech would be just right. At least the Tübingen-based company made it clear in their first notification of the lawsuit that they were not seeking an injunction and also did not intend to “take legal action that could hinder the production, sale or distribution” of the Biontech vaccine. The timing of the lawsuit must also be seen against this background. Curevac did not want to jeopardize the success of the vaccination campaign at the height of the pandemic. Rather, the Tübingen researchers see the rapid development of the vaccine “as an enormous achievement that had an extremely important impact on global public health,” according to the company announcement. Apparently there was some kind of non-aggression pact between the companies at the beginning of the pandemic. Developing a vaccine as quickly as possible was a top priority.
Curevac sees patent rights violated in four cases in particular. These are details of the technical production of mRNA molecules, for example modifications of the mRNA sequence, which increase the stability of the active substance and the yield of the proteins required for the vaccine. The vaccine formulation, which is specific to the vaccine against Sars-CoV-2, is also largely based on Curevac’s preliminary work. Curevac CEO Franz-Werner Haas did not say what amount the company imagines as “fair compensation” for its “pioneering work” in mRNA development.
An agreement is not in sight
It doesn’t look like an agreement is reached yet. The company’s work is “original and we will vigorously defend it against all allegations of patent infringement,” Biontech said. After the success of the Biontech vaccine, it is not uncommon for other pharmaceutical companies to claim that the vaccine may infringe on their intellectual property rights.
The US pharmaceutical company Alnylam, for example, is suing for damages over the use of LNP (lipid nanoparticle) technology, which is used in Biontech/Pfizer’s vaccines, but also in that of Moderna, to transport and deliver genetic material into 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”, as they announced.