BAYER starts law suit against COVID vaccine producers in the US
The new year begins with significant media coverage for Bayer: various local and national print media as well as television report that the Leverkusen-based company has filed lawsuits against BioNTech/Pfizer, and Moderna at a Federal Court in Delaware/US. The reason given is that the defendants used patent-protected technology from Bayer’s subsidiary Monsanto to manufacture their mRNA and DNA-based vaccines. Bayer claims that the vaccine manufacturers copied this pioneering work in order to stabilise the genetic material in their COVID-19 vaccines. According to a spokesman, the development of effective mRNA vaccines would not have been possible without this technology. In addition, Bayer has filed a separate lawsuit against Johnson & Johnson in New Jersey. This case concerns a patent for a special DNA-based manufacturing process that J&J is alleged to have used to produce its vector vaccine.
Bayer is demanding a fair share of the billions in sales generated by the vaccines in the form of damages. Bayer expressly emphasises that the lawsuit is not intended to block the manufacture or distribution of the vaccines.
Pfizer and BioNTech achieved global sales of more than $3.3 billion in 2024 with their Comirnaty vaccine. Moderna’s Spikevax also brought in $3.2 billion. Assuming that the lawsuits result in a settlement in which the companies pay a retroactive licence fee of approximately 3% – as is customary in many cases – this would be an attractive compensation prize for Bayer, which is facing serious damages payments in the US due to the still large number of glyphosate lawsuits.
Some open questions
At this point, one could leave the reporting at that. On closer look, however, a number of questions arise that have not been addressed by either Bayer or the press – because the former does not want to and the latter does not understand?
It is pointed out several times that the lawsuit is based on a technology patented by Monsanto in the 1980s to protect mRNA from chemical degradation. Originally, this was intended to enable the development of more resistant crops – long before mRNA vaccines became a global blockbuster. According to a Bayer press release, the defendants copied this technology without authorisation and used it to stabilise their vaccine.
However, if it is true that the technology in question was developed in the 1980s, then the original patents in question would have expired long ago after the regular 20-year term, even assuming the existence of SPC’s that could extend the term by a few years. If, on the other hand, these are not basic patents but rather follow-up submissions, which would then need claiming 2000 as their latest priority date, it seems unlikely that these would also have such a broad scope of protection that a whole series of pharmaceutical companies would fail overcoming this hurdle. In fact, a brief search of Monsanto’s patents in the mRNA field reveals fewer than 20 patent families, 19 of which have already expired.
Bayer is keeping rather quiet about the details of the lawsuit. But either crucial information is missing here, or the whole action could turn out to be a manoeuvre to still participate in the enormous revenues from the vaccine business by way of a settlement. Remember: Bayer’s vaccine collaboration with Curevac never made it to product maturity.