Moderna to Pfizer: “The Pandemic is Over”

On August 26th, Modernatx, Inc. and Moderna US, Inc. sued Pfizer and Biontech SE,  (Case 1:22-cv-11378 [D. Mass.]) for treble damages and attorney’s fees related to the alleged direct or indirect infringement of three of Moderna’s patents with claims directed to the mRNA vaccines developed by Moderna to prevent or lessen the symptoms of COVID-19 infections. The patents in suit are U.S. Pat. Nos. 10,898,574; 10,702,600 and 10,933,127. Claim 2 of the ‘574 patent is directed to lipid nanoparticles comprising an mRNA encoding a polypeptide, wherein the mRNA comprises one or more uridines, where substantially all of the uridines are modified. This is my compressed version of this patent claim, since the events leading to filing this suit are more interesting at this stage.

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Tillis Bill Tries to Fix Section 101

This recently introduced bill would replace section 101 with a lot of text. The commentators are all commentating, but I have yet to read whether or not the “outlaw” status of claims to diagnostic methods—led by varying interpretations of Mayo v. Prometheus—has been clearly lifted by this bill. Here are the relevant parts, at least setting up the discussion on this point.

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CareDx v. Natera – The Broad Road to Patent Ineligibility

In CareDx v Natera, Appeal No. 2022-1027, (Fed. Cir., July 18, 2022), a three judge panel of Judges Lourie, Bryson and Hughes, affirmed the district court’s finding that the claims of U. S. patent nos. 8703652, 9845497 and 10329607 are invalid for failing to survive the Alice/Mayo test for patent eligibility. I subtitled this post using Matthew 7:13-14: “Enter through the narrow gate. For wide is the gate and broad is the road, that leads to destruction.” The appeal to the Federal Circuit, which I wrote about on October 15, 2021, never got on the narrow road that leads to viable diagnostic claims. It may not have been possible to overcome the obstacles that blocked the road, but CareDx managed to hit them all, and ended up with three invalid patents on natural phenomena.

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Former USPTO Official Drew Hirshfeld Joins Schwegman Lundberg & Woessner as Principal

We are very pleased to announce that Drew Hirshfeld will be joining SLW on June 27 as a Principal. Drew has been a long-tenured employee of the United States Patent and Trademark Office (USPTO), and was named one of Managing IP’s Top 50 Most Influential People in IP in 2021. (Managing IP is part of the Euromoney Institutional Investor PLC group.) Drew began his career at the USPTO as a Patent Examiner in 1994 and has held a variety of senior management positions. He was named Commissioner for Patents in 2015. He performed the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO from January 2021 to April 2022. Most recently, Drew served as Acting Deputy Under Secretary of Commerce for Intellectual Property and Acting Deputy Director.

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