Arbutus Biopharma Corp. v. Moderna, Inc.

Arbutus Biopharma Corp. v. Moderna, Inc.

Opinion

MEMORANDUM

Goldberg, J.

During the course of the COVID-19 pandemic, Defendants Moderna, Inc. and ModernaTX, Inc. (collectively, "Moderna") brought to market an mRNA-based vaccine in an effort to combat the effect of the COVID-19 virus. Plaintiffs Arbutus Biopharma Corporation ("Arbutus") and Genevant Sciences GmbH ("Genevant") [*2]  (collectively "Plaintiffs") claim that, in order for the vaccine to succeed, Moderna used a revolutionary lipid nanoparticule ("LNP") delivery platform—created and patented by Plaintiffs—without paying for it or requesting a license.

On February 28, 2022, Plaintiffs filed suit seeking compensation for the use of the patented technology they claim to have developed. On May 6, 2022, Moderna filed a partial Motion to Dismiss, arguing that to the extent Plaintiffs seek royalties on the sale and provision of COVID-19 Vaccine doses to the United States Government, such claims can only proceed in the Court of Federal Claims and must be dismissed from this Court. For the following reasons, I will deny Moderna's Motion.¹

I. FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Complaint.²

A. General Background Regarding Virus Vaccines

As explained in the Complaint, viruses are typically described as small packets of deoxyribonucleic acid ("DNA") or ribonucleic acid ("RNA"). If a virus enters a living host cell, the virus's DNA or RNA can hijack the cell's machinery and instruct the cell to make copies of the virus. These copies, often numbering into the millions, leave the infected [*3]  cell and enter other cells where the process repeats. Infected cells can be damaged or die while hosting the virus, and, left unchecked, the host organism itself can die. Vaccines traditionally work by injecting into the body a weakened or inactive form of the virus that is unable to cause infection, but nonetheless retains features of the infectious virus and can teach the immune system to recognize and attack the infectious virus it if it invades in the future. (Id. ¶¶ 19-20.)

Moderna's COVID-19 vaccine belongs to a new class of medicines that deliver nucleic acids into the cells of the body to treat diseases or trigger an immune response to protect a person from future infection. Nucleic acids are molecules that encode the genetic information essential to sustain life. One type of nucleic acid is DNA, which is found within chromosomes and contains genetic information. In order to make the protein encoded by a particular gene, the cell first converts the genetic code in the gene's DNA into another type of nucleic acid known as messenger ribonucleic acid, or "mRNA," which is effectively a copy of the portion of DNA that the cell's protein-making machinery uses as a blueprint to assemble [*4]  the protein encoded by the gene. (Id. ¶¶ 21-23.)

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