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CureVac NV punched back against Pfizer Inc. and its German partner BioNTech recently by expanding its three claims of patent infringement to nine claims over the mRNA technology used in the companies’ COVID-19 vaccine. CureVac also disclosed that a U.S. court honored its request to transfer the trial.
CureVac in July 2022 filed its original lawsuit in German regional court, claiming Pfizer and BioNTech infringed on three of its patents through its production and formulation of the vaccines and it was entitled to compensation.
Pfizer and BioNTech responded in September 2022 with its countercomplaint in U.S. District Court in Massachusetts, asking for a judgment stating they did not infringe on CureVac’s U.S. patents, their COVID vaccine Comirnaty does not function like CureVac’s patented technology, and nine of CureVac’s patents should be invalidated.
CureVac’s recent filing successfully transferred the trial from federal district court in Massachusetts to the Eastern District of Virginia, a decision that is expected to move the case to a quicker trial date, possibly in 2024.
Other companies have also filed patent infringement cases against Pfizer and BioNTech.
Specific types of patents protect specific inventions. New drugs developed by pharmaceutical companies are protected by active ingredient patents and formulation patents.
An active pharmaceutical ingredient patent (API) is strong protection for new drugs because it addresses the structural formula, whether it is a cream, liquid, pill, or capsule. Competitors cannot offer generic versions in another form before the patent expires. These patents are also known as product, composition of matter, or compound patents, and their purpose is to protect the unique value of a core molecular structure.
Formulation patents are based on pharma companies restructuring a chemical molecule from a long-accepted compound, or combining it with other components so it behaves differently but still delivers benefits to consumers. This is akin to tweaking an aging but well-received product.
It is quite common for pharmaceutical companies to take long-known compounds and put a new spin on them. For the purposes of formulation patents, this typically takes the form of restructuring a chemical molecule or combining it with other ingredients in order to get it to behave differently while still delivering a benefit. This can be an effective means of extending the lifespan of an aging but popular product.
As an example, the drug amphetamine was discovered in 1887 as a performance enhancing drug and morphed over time to become the basis for the ADHD drug Adderall in 1996. Because of its novel formulation, its creator was entitled to a formulation patent.
Whether your own invention is a new and beneficial drug, or some other original product that deserves protection, you can call the intellectual property lawyers at Lomnitzer Law to discuss the best ways of safeguarding your unique idea.
