BioNTech and Pfizer File Noninfringement Complaint Against CureVac for COVID-19 Vaccine

On Tuesday, BioNTech and Pfizer filed a complaint to the District of Massachusetts  against CureVac AG seeking a declaratory judgment of noninfringement for their COVID-19 vaccine. 

The complaint states that BioNTech and Pfizer partnered to develop, manufacture and secure regulatory approval for their COVID-19 vaccine in 2020. After several months and millions of dollars in research and development, the partners released the first mRNA drug product and the first vaccine to target COVID-19 authorized for emergency use in the United States. 

The plaintiffs state that they are a a clinical stage biotechnology company that attempted to develop a COVID-19 vaccine during the pandemic. However, the complaint alleges that in October 2021 CureVac withdrew its application for approval of its COVID-19 vaccine.

The complaint purports that following the withdrawal of the vaccine, CureVac had significant losses and a financial deficit of about 1.06 billion euros as of December 31, 2021. The complaint alleges that after facing these losses CureVac contacted BioNTech’s IP counsel regarding the potential licensing of CureVac’s IP rights in connection with the vaccine the plaintiffs’ developed. Following the initial discussion CureVac allegedly threatened to assert several of its patents in connection with the plaintiffs’ vaccine. 

The plaintiffs allege that on June 29, CureVac submitted a patent infringement complaint to the German Regional Court in Düsseldorf against BioNTech alleging that the vaccine it developed with Pfizer infringed on three of its patents. 

Accordingly, BioNtech and Pfizer filed the present complaint requesting that the court make a determination as to whether their COVID-19 vaccine infringe CureVac’s patents. In addition to a declaration that the vaccine does not infringe on CureVac’s patents, the plaintiffs seek an injunction against CureVac preventing it from further asserting that the vaccine infringes on its patents as well as attorney’s fees and costs. 

The plaintiffs are represented by Saul Ewing Arnstein & Lehr LLP, Paul Hastings LLP and Willkie Farr & Gallagher LLP.