Pfizer, Moderna Spar Over Trial Date In COVID Vaccine IP Case - Mr. Mark Smith, LL.M., CLDP

Moderna and Pfizer are battling over setting a trial date in a dispute in Massachusetts federal court over COVID-19 vaccine patent infringement claims, with Pfizer looking to schedule a trial after summary judgment motions are decided, while Moderna is arguing a firm trial date is needed now and should be set for this fall. Pfizer, alongside BioNTech, is hoping that the District of Massachusetts will wait on scheduling a trial start date until after summary judgment motions are ruled on in the summer and its attorneys are freed up from other conflicts. Meanwhile, Moderna claims that the case is on track for a September 2024 trial and that pushing it back would create scheduling conflicts with its witnesses.   "The longer that this case proceeds without a firm trial date, the greater the opportunity for the court, the parties, and the witnesses to fill their calendars with other commitments," Moderna said in its Tuesday motion. "As BioNTech and Pfizer have already informed Moderna, their lead trial counsel have previously-scheduled trial conflicts that would make a trial date in 2024 under the present schedule impossible," Pfizer and BioNTech countered in their Tuesday response. Moderna filed its motion first, stating that the case could start as early as September 2024, and adding that it couldn't be held any later than January 2025 under the court's rules. According to the Massachusetts-based biotechnology company, Pfizer's point about possible conflicts actually illustrates the need to set a trial date "sooner than later," as both the court and witnesses' schedules could fill up. In addition, Moderna said summary judgment is not a good reason to delay scheduling the trial because there are no issues brought up that would make a trial unnecessary, and even if there were, setting a trial date wouldn't affect the court's ability to resolve the summary judgment. Moderna said it was worried that Pfizer was angling to slow the trial, as it told the Patent Trial and Appeal Board in a related matter that it wasn't expecting the trial to occur until next spring. "Moderna is concerned that defendants are seeking to delay trial in this case," Moderna stated. "In two recent filings submitted to the Patent Trial and Appeal Board, Pfizer and BioNTech have suggested that trial in this case will not occur until 'around April 2025,' and that it was 'speculative' and 'willfully naive' to expect the court to schedule trial sooner." However, Pfizer said in its response that it is the court's "established practice" to set trial dates after deciding on summary judgment motions, which in this case is set for July, and there is no reason to deviate from that. "The scope and length of the trial, and the time necessary for trial, will depend on the outcome of the summary judgment motions," Pfizer and BioNTech said. "At this time, the parties are proceeding into expert discovery and nothing has changed to warrant departure from the established practice." According to the two biotech companies, several members of their trial counsel have other trials scheduled throughout October and December 2024 that would make any trial dates in 2024 impossible. Pfizer said that if the court did decide to schedule a trial date ahead of summary judgment, sometime in early 2025 would be appropriate, as it would reduce scheduling conflicts and would not prejudice Moderna. Moderna first sued in August 2022, claiming that Pfizer and BioNTech could have steered clear of Moderna's patented technology in developing their COVID-19 vaccine, but instead infringed two key components of Moderna's platform. According to the suit, they used the same chemical modification and encoded their vaccine for the same coronavirus protein — the full-length spike protein — that Moderna says it pioneered long ago. Counsel for Moderna did not immediately respond to a request for comment. Counsel for Pfizer and BioNTech declined to comment. The patents in-suit are U.S. Patents Nos. 10,993,127; 10,702,600; and 10,898,574. Moderna is represented by William F. Lee, Emily R. Whelan, Kevin S. Prussia, Andrew J. Danford and Amy K. Wigmore of WilmerHale. Pfizer is represented by Thomas H. L. Selby, Stanley E. Fisher, A. Joshua Podoll, Kathryn S. Kayali, Michael Xun Liu, Michael Mestitz, Julie Tavares, Ayelet M. Evrony, Derrick M. Anderson and Haylee Bernal Anderson of Williams & Connolly LLP, and Lee C. Bromberg, Erik P. Belt and Wyley Proctor of McCarter & English LLP. BioNTech is represented by Bruce M. Wexler, Eric W. Dittmann, Young J. Park, Ashley N. Mays-Williams, Scott F. Peachman, Karthik R. Kasaraneni and Ryan Meuth of Paul Hastings LLP, and Jeffrey S. Robbins, Joseph D. Lipchitz and Gregory M. Boucher of Saul Ewing LLP. The case is ModernaTX Inc. et al. v. Pfizer Inc. et al., case number 1:22-cv-11378, in the U.S. District Court for the District of Massachusetts.