IP Law, Moderna, and Disney - Oh MY!

The area of intellectual property (IP) law is one that I am very passionate about as an artist and creator. IP law covers a wide range of disciplines. Most people recognize its presence within patents, copyrights, and trademarks. The efforts of IP attorneys ensure that clients working to further technological innovation, media and even fashion brands, can be confident that their intellectual creations aren’t infringed upon without permissions. In today’s post I will provide you with an overview of how intellectual property works and examine two cases that demonstrate these functions in recent news.

How it works

Intellectual property encapsulates all legal rights afforded to products of creation from humans. These rights are essential to the development of our society. Without guaranteed protections for innovation, many would keep their inventions to themselves. There are two types of creations that can be protected within IP: tangible and intangible. Tangible means the physical objects. Examples of this include the lightbulb, the original Ford motorcar, and even your electric coffee maker. Intangible means the concepts behind an invention. For example, the music and lyrics to Queen Bey’s recent album or the Amazon logo.

The protections for these different innovations help the marketplace grown, and help creators retain credit. However, there is a balance to this, which sometimes requires some tradeoffs. Patents, trademarks, and copyrights all have levels of ownership, the three most basic levels are as follows. Exclusive rights mean only that person, and/or their company have the right to utilize the IP that has been licensed. Limited use means that the IP can be used by others, but only in a specific way. An example of this is public utility easements, which allow a utility company to trim branches of a tree on your property if they’re interrupting a phone line or pole. Open source/public use means that the IP is licensed but individuals in the society can have free and open access to it.

IP law is mostly concerned with helping creators license their work and file with the U.S. Government. Sometimes however, a license is encroached upon, and attorneys will file motions, argue, and advocated for their clients. Sometimes these cases become criminal, however the majority are settled or ruled upon in civil court.

Case Study 1

The Moderna Vaccine

While the pandemic has been devastating to every individual across the globe, it has also become a platform for drug development companies to promote their businesses. Moderna’s CEO imagines that their company in the future can produce an annual vaccine that will counteract many viruses. A lawsuit, however, stands in their way, legally, and in the public eye.

On August 22nd, 2022, Moderna filed a lawsuit regarding the mRNA technology it used to develop it’s Covid-19 vaccine, claiming patent infringement by Pfizer and BioNTech during development. Pfizer and BioNTech are sure their Vaccine is based on mRNA technology developed together, not Moderna’s. IP expert Christopher Morten believes that the lawsuit is solely meant to allow Moderna to profit from Pfizer and BioNTechs sales. Other experts have supported this, stating that the company seems to be attempting to control all the mRNA technology, which would increase Moderna's already Three Billion + profits from the Vaccine.

This situation isn’t just about one patent infringement however, it is about two. Moderna is being sued as well, FOR THE EXACT SAME REASON. Biotech companies Arbutus Biopharma and Riovant’s Genevant Sciences, claim their lipid nanoparticle technology was used without permission by Moderna to make the mRNA viable within the Vaccine. The same mRNA that Moderna is claiming was infringed upon my Pfizer and BioNTech. Moderna combatted the claims in the lawsuit, as CNN Health explains, by stating they were “granted the right to infringe on patents under, a legal clause that allows the government to waive patent rights for companies that develop goods during public emergencies.” If Moderna argues using this terminology and loophole, then Pfizer and BioNTech can do the same.

Moderna motioned to dismiss the case against them on the grounds that the loophole above meant that the companies suing them, should instead direct their efforts at the U.S. government. Last week however, the Judge presiding the case ruled against the motion. Judge Goldberg referenced IRIS Corp v. Japan Airlines Corp 769 F.3d 1359, 1361 (Fed. Cir. 2014) in that “[i]ncidental benefit to the government is insufficient.” Judge Goldberg used this 2014 case, and others, to dispel Moderna’s claims that the contract language showed that the vaccine was “for the government,” as the Governmental benefits from the vaccine were incidental. The Judge, siding with the Plaintiffs argument, further explained the reasoning, stating that benefits must be direct for the government to hold liability for infringement. This patent case will continue to move forward as a fascinating example of IP law at work.

(you can read the full ruling from Judge Goldberg here.)

Case Study 2

Disney, Racists, and the Little Mermaid

Many have been frustrated with the Disney legal team for years as the company in general is very tough on infringement. Their company grosses billions with these licensing measures which include anti-piracy clauses, and even an email address for tips about infringement to be submitted (tips@disneyantipiracy.com if you were curious). While their practices have been controversial over the past years, recent legal news has brought an interesting possibility to the forefront of this Disney debate: The Little Mermaid.

In June of 2019, Disney announced the talented actress Halle Bailey as the new Little Mermaid. After a trailer release in September of this year, the internet has exploded. Racists have declared the casting choice abominable, and there have been claims that Racist AI experts will alter the film with technology to create a whitewashed version and distribute it digitally. Joe Patrice from the Legal website Above the Law wrote about this matter. The conversation started on twitter, and his article featured this screen grab of the ignition point.

Racism is not ok in any way, shape, or form. This racism is blatant and public and incredibly disrespectful to the talented cast. Luckily, this is a situation that can be sanctioned in court with IP, and Disney plans to do just that. Patrice reports that Disney has TWENTY different “causes of action for copyright and trademark infringement.” If any racist digital creator attempts to alter this film in any way, Disney has promised to crack down the second any of these altered films are created. Intellectual property serves as a protective barrier to a work that has been licensed. If the barrier is permeated, action will be taken. As this example about Disney demonstrates, IP laws aren’t just there to protect work once it is created, it is also a deterrent for potential infringers.

Let me know what you think about these cases. You can also request other cases you want to learn about as well. You can reach me @Kayla_Konnection on Insta, @kaylakonnection on Pinterest, or ThekaylaKonnection@gmail.com.

See you soon,

Kayla

Other resources:

https://money.howstuffworks.com/intellectual-property.htm