If CureVac’s patent infringement lawsuit against BioNTech is successful, the company could be lined up to receive serious royalties from its fellow German mRNA pioneer.
That’s the analysis of Berenberg Capital Markets, which estimates that $20 billion of BioNTech’s COVID-19 vaccine revenue could be subject to the suit. The team figures there’s $500 million in “potential upside” for CureVac based on a royalty rate of 2% to 3% in “an optimistic scenario,” analyst Zhiqiang Shu wrote in a note to clients.
The action centers around three patents that CureVac claims BioNTech violated in its rapid creation of its megablockbuster vaccine. A fourth patent, which expired last month, relates the manufacture and sale of the vaccine. The other three patents won’t expire until the 2030s.
CureVac said it has no intention to halt the production or distribution of the shot with an injunction. But it does seek recognition and royalties from past and future sales.
Court documents in Germany are not publicly available but CureVac said in a release when it filed the suit that the infringement relates to the engineering of mRNA molecules.
Berenberg said that the key intellectual property could be the 20-year-old EP1857122B1 patent, which recently expired, but is one of the foundational patents for mRNA sequence optimization. The patent states that an increase in guanine and cytosine during production stabilizes mRNA to “encode a viral protein,” the analyst explained.
“This is used in [BioNTech]’s COVID-19 vaccine,” Shu wrote. “Therefore, we think royalties based on this patent are plausible.”
BioNTech could try to invalidate this patent by claiming it was “not novel or non-obvious,” Shu added.
When asked in a Fierce Pharma interview if CureVac might also have a claim against mRNA vaccine maker Moderna, CEO Franz-Werner Haas refused comment.
This is not the first time BioNTech has been sued for patent infringement in its development of Comirnaty. In October of 2020, San Diego-based Allele Biotechnology and Pharmaceuticals took on the company and Pfizer for allegedly using its mNeonGreen fluorescent protein to test their vaccine. Pfizer and Allele settled the case six months ago.