Bayer / Monsanto are sueing BioNTech, Pfizer and Moderna over patents filed in 1989. I wondered how this is even possible, patents expire after 20 years. Turns out, it's expired almost all over the world, except in the US. How?
It looks like a submarine patent: Filed _just_ in time to benefit of the older US rules (date of issuance + 17 years, kept secret until issued as the US did until Dec 31, 1995 instead of the Jan 1, 1996+ method of date of filing + 20 years, application published within 18 months, as adopted by the US through the TRIPS agreement), then amended with whatever minor edit to delay the procedure indefinitely. The idea is that such patents can stay in limbo practically forever and only once they turn out to be valuable (e.g. somebody else independently invented the same thing) the applicant lets them through, getting the protection for 17 years starting _then_. Maximum licensing fee coverage, no time lost to periods where nobody is licensing!
This patent? https://patents.google.com/patent/US7741118B1/en says filed in May 1995 (as continuation of a series of earlier applications going back to 1989), granted in June 2010, so it was hiding out for 15 years! It's valid for 17 years, which is an indicator that it was processed under pre-TRIPS rules.
However since 2005, federal courts (like the one Bayer went to) might consider such delays undue and apply the doctrine of laches (Symbol Technologies v Lemelson, 2004). That is, Bayer might have to show that it wasn't Monsanto who was responsible for that 15 years delay, or they might lose their claim.
US7741118B1 - Synthetic plant genes and method for preparation - Google Patents
A method for modifying structural gene sequences to enhance the expression of the protein product is disclosed. Also disclosed are novel structural genes which encode insecticidal proteins of B.t.k. HD-1, B.t.k. HD-73, B.t. tenebrionis, B.t. entomocidus , 2 protein of B.t.k. HD-1, and the coat protein of potato leaf roll virus.








