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
Date Written: April 14, 2021
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.
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