U.S. 10,960,070: The U.S. Government’s Important New Coronavirus Vaccine Patent

NYU Law Technology Law & Policy Clinic Report on U.S. Patent No. 10,960,070

54 Pages Posted: 17 Aug 2021

See all articles by Christopher Morten

Christopher Morten

Columbia Law School; Yale Law School

Laurel Boman

New York University (NYU), School of Law

Joseph Rabinovitsj

New York University (NYU), School of Law

Celine Rohr

New York University (NYU), School of Law

Date Written: April 14, 2021

Abstract

This report presents an analysis of U.S. Patent No. 10,960,070 (the “’070 patent”), an important and new coronavirus vaccine patent owned by the U.S. government, along with two of the government’s academic partners. The report concludes that the ’070 patent appears to be valid, enforceable by the U.S. government, and infringed by Moderna, Inc. (Moderna), because Moderna is currently making and selling a COVID-19 vaccine — mRNA-1273 — that incorporates and relies on technology described and claimed by the ’070 patent. Moderna does not appear to have the U.S. government’s permission to use this patented technology.

Because Moderna lacks permission to use the technology, because the technology is essential to mRNA-1273’s function and value as a vaccine, and because mRNA-1273 has been a financial blockbuster for Moderna, the ’070 patent provides the U.S. government significant leverage over Moderna. The U.S. government could assert the ’070 patent against Moderna in court and could (assuming Moderna’s continued financial success) demand hundreds of millions or even over a billion dollars in compensation. The U.S. government could alternatively use the threat of litigation of the ’070 patent to bring Moderna back to the negotiation table and convince Moderna to share its own patents, trade secrets, and other intellectual property on mRNA-1273 with the U.S. government and with vaccine manufacturers around the world. The latter option is the better one, to accelerate scale-up of global mRNA vaccine manufacturing, vaccinate the world, and bring the COVID-19 pandemic to a conclusive end.

Note: Funding: None to declare.

Declaration of Interests: None to declare.

Suggested Citation

Morten, Christopher and Morten, Christopher and Boman, Laurel and Rabinovitsj, Joseph and Rohr, Celine, U.S. 10,960,070: The U.S. Government’s Important New Coronavirus Vaccine Patent (April 14, 2021). NYU Law Technology Law & Policy Clinic Report on U.S. Patent No. 10,960,070, Available at SSRN: https://ssrn.com/abstract=3889784

Christopher Morten (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

HOME PAGE: http://law.yale.edu/ghjp/who-we-are

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

HOME PAGE: http://www.law.columbia.edu/faculty/christopher-morten

Laurel Boman

New York University (NYU), School of Law

New York, NY
United States

Joseph Rabinovitsj

New York University (NYU), School of Law ( email )

New York, NY
United States

Celine Rohr

New York University (NYU), School of Law

New York, NY
United States

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