Promissory Estoppel Looms Large

Students fall in love with promissory estoppel during their first year, just as they do with unilateral contracts.  I try to nip it in the bud.  Promissory estoppel is rarely going to work in a commercial context, I tell them.  You are going to put it in your complaint as a cause of action if it is at all colorable, but if you are going to win your case, you are far more likely to do so based on breach of contract.  

And then, along comes a headline-making case where promissory estoppel makes perfect sense.  In this case promissory estoppel might provide an affirmative defense to a breach-of-patent claim.

As  Rebecca Robbins and Jenny Gross report in The New York Times, Moderna is suing Pfizer and BioNTech, alleging that Pfizer's and BioNTech's COVID-19 vaccines were created using technology that Moderna had developed years before the pandemic began.  As the Times reporting makes clear, this lawsuit does not seem to endanger the supply of vaccines; it's just about which corporation gets to reap the profits from them.  

Defendants might make a promissory estoppel claim.  As we learned from friend of the blog Guy Rub (left), on October 8th, 2020, Moderna issued a statement on intellectual property matters during the COVID-19 pandemic.  The third paragraph of that statement reads as follows:

Beyond Moderna’s vaccine, there are other COVID-19 vaccines in development that may use Moderna-patented technologies. We feel a special obligation under the current circumstances to use our resources to bring this pandemic to an end as quickly as possible. Accordingly, while the pandemic continues, Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic. Further, to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post pandemic period. 

In its complaint, Moderna cites to its own press statement and notes the following in early 2022, "the collective fight against COVID-19 had entered a new endemic phase and vaccine supply was no longer a barrier to access in many parts of the world, including the United States."  For this reason, Moderna announced  in early March "that it expected companies such as Pfizer and BioNTech to respect Moderna’s intellectual property and would consider a commercially-reasonable license should they request one."  Pfizer and BioNTech never requested a license.

Is Moderna's statement seems consistent with its current litigation posture?  Is that inconsistency enough to estop Moderna from protecting its intellectual property?  The answer might turn on a fact question -- are we still in a "pandemic period." 

Judging by the number of people I see wearing masks, I might be inclined to say no.  But we still have over 90,000 new infections reported daily, and with home testing at all, the actual number is likely to be much higher.  COVID deaths no longer make the news, but that does not mean that they are not happening -- nearly 500/day.  Meanwhile, healthy Americans are still getting sick -- really sick -- from this virus, and the long term effects linger mysteriously.  In short, COVID sucks.

A new round of vaccines is coming, so regardless of which pharmaceutical company benefits, please get your booster.  According to The New York Times, the unvaccinated are currently three times more likely to get sick and six times more likely to die than the fully vaccinated.  Imagine how silly you would feel if you or a loved one became seriously ill because you concluded that the pandemic was over and you didn't need to be vaccinated.

As to the litigation, tay tuned. 

If you subscribe, you can look at the complaint here.