Law360 (March 29, 2021, 5:21 PM EDT) -- Pfizer Inc. and BioNTech want a California federal judge to toss a suit claiming they used poached research technology in their testing of a COVID-19 vaccine, saying the case should be stopped before it "becomes another burden on" vaccine efforts.
Pfizer and co-defendant BioNTech on Friday moved to dismiss Allele Biotechnology and Pharmaceuticals Inc.'s amended infringement claims related to a patented fluorescent protein called "mNeonGreen."
The defendants said that the case should be tossed "before this lawsuit becomes another burden on Pfizer and BioNTech as they continue their work on this vital vaccine." Additionally, the amended complaint tries "to muddy the waters," the dismissal bid said.
"Allele is still not accusing Pfizer or BioNTech of selling a COVID-19 vaccine that infringes their patent, selling their alleged invention of mNeonGreen, incorporating mNeonGreen into the vaccine itself, or using mNeonGreen in the process of making the vaccine," the dismissal bid said. "Nonetheless, the amended complaint seeks to avoid dismissal by adding a grab bag of new and conclusory allegations."
Additionally, Pfizer and BioNTech said that the "use of a patented invention that is reasonably related to the development and submission of information to the [U.S. Food and Drug Administration]," can't be subject to infringement in this instance, so the case should be tossed.
Allele launched its suit in October and filed an amended version in February. The suit relates to Allele's patented mNeonGreen artificial fluorescent.
Fluorescent proteins such as Allelle's patented mNeonGreen artificial fluorescent are a class of proteins capable of emitting the light of one wavelength when exposed to the light of a different wavelength, according to the suit. Allele said its mNeonGreen is a "breakthrough" artificial fluorescent that's been used to make "the gold standard" COVID-19 assay for testing of against vaccine candidates.
Allele alleged that Pfizer and BioNTech have used been using mNeonGreen to select their vaccine candidate and do clinical trials, among other things.
Ben L. Wagner, an attorney for Allele, told Law360 on Monday that he was confident in his client's case, and added that he amended the suit to make the allegations the most up to date.
"With or without that amendment, we were very comfortable with the complaint and claims," he said.
Pfizer said in a brief statement that it "will defend [its] position as appropriate."
Counsel for BioNTech did not immediately respond to requests for comment.
The patent-in-suit is U.S. Patent No. 10,221,221.
Allele is represented by Ben L. Wagner, Christopher Franich and Robert Schaffer of Troutman Pepper Hamilton Sanders LLP.
Pfizer is represented by David J. Noonan and Genevieve M. Ruch of Noonan Lance Boyer & Banach LLP and Stanley Fisher, Thomas Selby, Charles L. McCloud and Michael Xun Liu of Williams & Connolly LLP.
BioNTech is represented by Elizabeth L. Brann, Bruce M. Wexler and Merri C. Moken of Paul Hastings LLP.
The case is Allele Biotechnology and Pharmaceuticals Inc. v. Pfizer Inc. et al., case number 3:20-cv-01958, in the U.S. District Court for the Southern District of California.
--Editing by Rich Mills.
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