German Patent Court Backs BioNTech in Patent Dispute - OpenAI and Microsoft sued by New York Times for infringing copyright

German Patent Court Backs BioNTech in Patent Dispute

In a recent decision on 19 December, the German Federal Patent Court invalidated a key patent in a dispute between CureVac and BioNTech. This decision only invalidates the patent in Germany, but may also have implications for parallel infringement proceedings and the value of CureVac's shares.

In April 2023, the German Patent Court in Munich issued a preliminary opinion confirming the validity of CureVac's European patent EP 185722B1 covering a method of increasing mRNA expression in cells. However, last December the court reversed its opinion.

CureVac intends to bring the case to the German Federal Court of Justice and claimed that this decision does not affect its ongoing litigation against BioNTech on other fronts. It is not clear that is the case: in September the Düsseldorf Regional Court suspended a lawsuit filed by CureVac against BioNTech for four patent infringements relating to the use of mRNA technology in COVID-19 vaccines. The court stated that it would await decisions from the German and European patent offices as to the validity of CureVac’s patents before ruling on the case. The German Patent Court’s decision is therefore unlikely to weigh in favour of CureVac’s arguments.

In addition to European Patent 185722B1, BioNTech has also questioned the validity of three German utility models registered by CureVac (DE 202015009961U1, DE 202015009974U1, and DE 2021003575U1) and filed an opposition against its European Patent EP 3708668B1 related to artificial nucleic acid molecules for enhancing protein production.

Although CureVac has recently joined forces with GSK to develop vaccines against COVID-19 and seasonal influenza, the patent court's decision not only represents a significant blow to the company's hopes of securing a share of the billions of euros in COVID-19 vaccine revenues, but has also caused the company's share value to fall by more than 30%.

AI & Media: New York Times sues OpenAI and Microsoft

On 27 December, the New York Times filed a lawsuit against OpenAI and Microsoft, accusing them of using millions of its articles without permission to train their artificial intelligence.

The lawsuit was filed in the US District Court in New York. The newspaper claims that the two tech companies have infringed copyrights by using their works to train their chatbots, ChatGPT and Copilot, to display content to their users, all without prior consent or licence, thereby taking advantage of the Times' massive investment in journalism by using it to provide alternative means of information delivery. In support of this claim, the newspaper cites instances in which OpenAI and Microsoft chatbots provided almost identical excerpts from its articles. In making this argument, the Times challenges the argument put forward by OpenAI that using publicly available internet material to train an AI Model was a “fair use” of copyright-protected materials, and that this use is indeed permissible.  

In terms of damages claimed by the New York Times, although the suit does not include an exact amount, the newspaper estimates that it should be in the billions of dollars.

OpenAI argues that NTY's content did not contribute substantially to the training of its existing IAs. And it insists that it has made fair use of the material publicly available on the internet, respecting the rights of creators and using measures such as an opt-out process for publishers.

Furthermore, OpenAI emphasises its commitment to working with and supporting the news industry, citing meetings with numerous organisations and industry leaders such as the Associated Press and Axel Springer. It also claims that its negotiations with the New York Times regarding the use of its articles and content to feed its chatbots were constructive until the unexpected lawsuit on 27 December.

This case raises very relevant and topical questions about ethics and balance in the relationship between the media and big technology companies. The main friction used to be on the use by internet search engines of contents created and published by online newspapers via hyperlinks and indexes. The issues’ nature has changed and now involves the direct use of the content by chatbots developers. In a previous blog, we discussed the new partnership between OpenAI and news publisher Axel Springer, in which they have agreed that Axel's content will receive a "favourable position" in ChatGPT's search results, and that summaries will be available on ChatGPT as soon as the original articles are published. As well as being more accessible and visible to users, it is estimated that the publisher will earn tens of millions of euros over three years for its data. For more information on this partnership, we invite you to read our earlier blog, which you can read here.