By Hailey Konnath

Law360 (October 5, 2020, 8:15 PM EDT) -- Pfizer Inc. and Regeneron Pharmaceuticals Inc. were accused Monday of using poached technology in their development and testing of COVID-19 vaccines and treatments, according to a pair of patent infringement suits lodged in California and New York federal court.

San Diego-based Allele Biotechnology and Pharmaceuticals Inc. is claiming the pharmaceutical giants infringed its patented mNeonGreen technology, which it said is an important reagent used to develop therapeutics for the virus. The technology was patented in 2019, and it's used in testing antibody and vaccine candidates, Allele said.

Notably, the technology was used in Regeneron's experimental "antibody cocktail" given to President Donald Trump last week to treat his COVID-19 infection. Hundreds of organizations and universities have licensed the mNeonGreen technology, but Pfizer and Regeneron aren't among them, according to Allele.

"This lawsuit follows because [Pfizer] made the deliberate and calculated decision to infringe rather than even so much as pick up the phone and seek to obtain the rights to use Allele's valuable intellectual property," Allele said in its suit against Pfizer.

Allele President Jiwu Wang said in a statement Monday that he's pleased that mNeonGreen has played "a pivotal role in the fight against COVID-19."

"In no way does Allele want to prohibit or slow down development of vaccines or therapeutics discovered using this technology," Wang said. "Our goal is to have these companies recognize, as many others have before them, the hard work that went into developing this technology and to respect our intellectual property."

Regeneron said in a statement provided to Law360 that it is still reviewing the suit.

That said, "[w]e disagree that Regeneron has infringed any valid patent and we will vigorously defend our position against this lawsuit," the company added.

According to the suits, fluorescent proteins are a class of proteins capable of emitting the light of one wavelength when exposed to the light of a different wavelength. Allele's mNeonGreen is a "breakthrough" artificial fluorescent that's been used to make "the gold standard" COVID-19 assay for testing against vaccine candidates.

Pfizer and its partner company BioNTech, which is also named in the California suit, stole that assay for their own unauthorized commercial testing and development, Allele said.

"Only through use of mNeonGreen were defendants able to develop and test the BNT162 vaccine candidate at light speed making them first to market, earning them an immediate $445 million in grants and over $4 billion in sales of the vaccine to date," Allele said.

And all of that was simply the "downstream benefit" they enjoyed by using Allele's technology, the company said.

Allele is after unspecified damages, attorney fees and court costs.

Pfizer representatives didn't immediately return requests for comment Monday.

The patent-in-suit is U.S. Patent No. 10,221,221.

Allele is represented by Martin E. Gilmore, Christopher G. Hanewicz, Andrew T. Dufresne and Michael R. Laing of Perkins Coie LLP and Ben Lewis Wagner, Christopher Franich and Robert Schaffer of Troutman Pepper Hamilton Sanders LLP.

Counsel information for Pfizer and Regeneron wasn't immediately available Monday.

The cases are 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, and Allele Biotechnology and Pharmaceuticals Inc. v. Regeneron Pharmaceuticals Inc., case number 7:20-cv-08255, in the U.S. District Court for the Southern District of New York.

--Editing by Philip Shea.

Update: This story has been updated to include comment from Regeneron.

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