Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 1 of 10 PageID #: 13342
`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 1 of 10 PagelD #: 13342
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`EXHIBIT A
`EXHIBIT A
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 2 of 10 PageID #: 13343
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-252 (MSG)
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Plaintiffs,
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`v.
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`MODERNA, INC. and MODERNATX, INC.
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`Defendants.
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`MODERNA, INC. and MODERNATX, INC.,
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`Counterclaim-Plaintiffs,
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`v.
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Counterclaim-Defendants.
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`DECLARATION OF PETER WOJCIECHOWSKI
`IN SUPPORT OF THE PARTIES’ JOINT MOTION TO SEAL
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 3 of 10 PageID #: 13344
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`I, Peter Wojciechowski, hereby declare as follows:
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`1.
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`I am CMC Knowledge Management Lead at ModernaTX, Inc. (hereinafter,
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`“Moderna”). In this role, I am familiar with Moderna’s technical research and development
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`information. I am familiar with the fact that Moderna maintains this information as confidential1,
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`and I am familiar with the extensive efforts Moderna takes to protect its confidential information.
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`I have personal knowledge of the facts stated in this declaration of have become aware of such
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`facts through my role at Moderna. If called upon to testify, I could and would competently testify
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`thereto.
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`2.
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`I write this declaration in support of Moderna’s request to avoid disclosure of
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`sensitive and confidential information on the public record. I discuss below how and why
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`Moderna keeps certain technical information confidential, and the serious harm that would result
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`to Moderna from disclosure of this information to Moderna’s competitors.
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`3.
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`I understand this case relates to Moderna’s COVID-19 Vaccine, known as
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`mRNA-1273 or “SpikeVax.” SpikeVax is comprised of messenger RNA (mRNA) which is
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`encased in lipid nanoparticles (LNPs). Moderna’s proprietary LNP is comprised of four lipid
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`components including SM-102, cholesterol, phospholipid, and PEGDMG-2000.
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`4.
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`I have been provided and have reviewed the information that Moderna proposes
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`to redact from Moderna’s Opposition to Plaintiffs’ Motion to Compel Samples (D.I. 183)
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`(“Moderna’s Opposition”), as well as supporting documents submitted with Moderna’s
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`Opposition. Specifically, Moderna’s Opposition and Exhibits 4-6, 14-15, 19-23, and 25-26
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`1 I understand that the Protective Order in this case (D.I. 91) includes two categories of
`Protected Material: “Confidential” and “Highly Confidential – Outside Counsel’s Eyes
`Only.” I understand that Moderna’s Opposition and Exhibits include both categories of
`Protected Material. For the purposes of this declaration, I have used the term “confidential”
`to cover both categories, neither of which should be disclosed to the public for the reasons
`explained herein.
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 4 of 10 PageID #: 13345
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`thereto contain Moderna confidential information. These documents reflect Moderna confidential
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`technical and business information regarding Moderna’s COVID-19 vaccine.
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`5.
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`It is critical to Moderna that the Court maintain under seal Moderna’s confidential
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`information. Moderna has always taken extensive measures to maintain the confidentiality of its
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`technical information, including by implementing procedures that restrict access to sensitive
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`information even within Moderna. Employees have confidentiality obligations as part of their
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`employment and are provided guidance regarding how to treat sensitive information.
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`Specifically, confidential Moderna information is not to be disclosed outside of Moderna except
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`under confidentiality agreement and when necessary. Documents containing such information
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`may be marked as confidential or otherwise indicate they contain restricted or sensitive
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`information. Internal to Moderna, employee access to commercially sensitive and trade secret
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`information is often restricted on a need-to know basis, as determined by a person’s group or role
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`on a project. Moderna has been extremely concerned about the protection of its confidential
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`information during this litigation and has been very careful to always protect this information.
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`6.
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`Moderna’s proposed redactions seek to seal portions of Moderna’s Opposition
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`and Exhibits 4-6, 14-15, 19-23, and 25-26 thereto, which refer to, quote, summarize, or
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`otherwise disclose Moderna’s sensitive and confidential technical information. Specifically, the
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`information on the following pages of Moderna’s Opposition and Exhibits disclose specific
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`information concerning the composition of Moderna’s COVID-10 Vaccine and Moderna’s
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`proprietary and trade secret manufacturing methods for its COVID-19 Vaccine including steps in
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`the manufacturing process and parameters for those steps:
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`• Moderna’s Opposition at page 1, lines 9-10; page 2, lines 14, 16; page 3, lines 16-17,
`23;
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 5 of 10 PageID #: 13346
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`• Exhibit 4 at page 14, lines 20-28; page 15, lines 1-9, 14-16; page 17, lines 7, 9-10;
`page18, lines 5-6, 8-11; page 19, lines 7-11, 13-15, 20-21; page 20, lines 1, 25-26;
`page 21, lines 1, 4-5, 10-15, 17-24; page 22, lines 1-3, 8-10; page 23, lines 23, 26-27;
`page 24, lines 22-23; page 25, lines 5-6, 8, 10-11; page 26, lines 7, 9, 11, 17-18, 20-
`22, 24; page 27, lines 1, 4, 8-9, 16-22, 25; page 28, lines 5, 7-15, 17, 23; page 29, line
`1; page 30, lines 4, 7-8, 11-12, 14, 17, 20-21; page 31, lines 7-12, 14-15, 20-26; page
`32, lines 1-3, 7-18, 22, 26-28, 31; page 52, lines 15-23; page 53, lines 1-4; page 54,
`lines 22-23; page 55, lines 1-2;
`• Exhibit 5 at page 3, lines 11-17, 25, 38-41; page 4, lines 4-7, 14, 20-22;
`• Exhibit 6 (confidential Certificate of Analysis);
`• Exhibit 14 at page 2, lines 14-16; page 9, lines 13-21; page 10, lines 1-17; Exhibit A
`(confidential specification);
`• Exhibit 15 at chart Paragraph 4(c) Charts;
`• Exhibit 19 at page 4, lines 31-40; page 7, lines 14-15; page 8, lines 14-16, 23-24;
`• Exhibit 20 at page 3, lines 16-22, 37-40; page 4, lines 36-43; page 5, lines 5-10, 24-
`33;
`• Exhibit 21 at page 1, lines 13-22; page 2, lines 5-6; page 4, lines 4, 10, 23; page 5,
`lines 4-20;
`• Exhibit 22 at page 1, lines 28-30; page 4, line 13-17;
`• Exhibit 23 at page 1, lines 33-35;
`• Exhibit 25 at page 2, lines 11-14, 18-25; page 3, lines 3-5, 8-11; and
`• Exhibit 26 at page 1, lines 23-29; page 2, lines 25-31.
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`7.
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`The information within Moderna’s Opposition and Exhibits 4-6, 14-15, 19-23,
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`and 25-26 thereto that Moderna proposes redacting is confidential and sensitive information that
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`Moderna does not disclose publicly, which it wishes to remain confidential. There is significant
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`competition between established vaccine suppliers, including suppliers with mRNA-based
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`vaccines. Additionally, there are companies considering entering the vaccine market and
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`companies developing mRNA-based vaccines and therapeutics for other diseases or developing
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`lipid nanoparticles for mRNA-based products. Because there are so few competitors in these
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 6 of 10 PageID #: 13347
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`markets, the markets are highly competitive, and any information about one of the competitors,
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`even seemingly minor information, may prove competitively advantageous. Moderna has spent
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`significant resources to develop its formulation and manufacturing methods, and the release of
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`such information to the public, including Moderna’s competitors, would significantly harm
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`Moderna.
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`8.
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`With respect
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`to Moderna’s formulation, Moderna considers
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`its precise
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`formulation, including the quantities of ingredients, a trade secret, which is not public
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`knowledge.
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`9.
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`With respect to Moderna’s proprietary manufacturing process for SpikeVax,
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`Moderna considers its process-as-a-whole a trade secret, including the steps in the process, the
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`records of each step, the parameters or specification for each step (such as timing, sequence,
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`amount and kind of raw materials, temperatures, measurements, equipment used etc.). Moderna
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`has not publicly disclosed its proprietary manufacturing process. Exhibits 4-6, 14-15, 19-23, and
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`25-26 disclose many of these details, which are referenced in the portions of Moderna’s
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`Opposition that Moderna proposes to redact.
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`10.
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`Based on my personal knowledge and experience in the pharmaceutical business,
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`I believe that disclosure of this information would significantly harm Moderna by revealing
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`confidential data to its direct competitors and the public generally. If the confidential information
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`were made public, Moderna’s competitors would be able to potentially replicate Moderna’s
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`products, features within Moderna’s products, and methods of making Moderna’s products, or
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`make decisions about where, when, and how to offer directly competitive goods with full
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`knowledge of Moderna’s technology. Moderna’s competitors would gain a significant advantage
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`in creating their own business strategies, which would put Moderna at a significant competitive
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`4
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 7 of 10 PageID #: 13348
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`disadvantage, causing it real and serious harm. Moderna’s competitors may also seek patent
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`claims to cover Moderna’s technology.
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`5
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 8 of 10 PageID #: 13349
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`I declare under penalty of perjury under the laws of the United States of America that the
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`foregoing is true and correct to the best of my knowledge.
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`Executed on this January 10, 2024
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`Respectfully submitted,
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`/s/ Peter Wojciechowski
`Peter Wojciechowski
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 9 of 10 PageID #: 13350
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 10, 2024, I caused the foregoing to be electronically filed
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`January 10, 2024, upon the following in the manner indicated:
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`John W. Shaw, Esquire
`Karen E. Keller, Esquire
`Nathan R. Hoeschen, Esquire
`Emily S. DiBenedetto, Esquire
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiffs Arbutus Biopharma
`Corporation and Genevant Sciences GmbH
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`Daralyn J. Durie, Esquire
`Adam R. Brausa, Esquire
`Eric C. Wiener, Esquire
`Annie A. Lee, Esquire
`Shaelyn K. Dawson, Esquire
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105-2482
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
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`Kira A. Davis, Esquire
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017-3543
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
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`Case 1:22-cv-00252-MSG Document 195-1 Filed 01/16/24 Page 10 of 10 PageID #: 13351
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`David N. Tan, Esquire
`MORRISON & FOERSTER LLP
`2100 L Street, NW, Suite 900
`Washington, DC 20037
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
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`David I. Berl, Esquire
`Adam D. Harber, Esquire
`Thomas S. Fletcher, Esquire
`Jessica Palmer Ryen, Esquire
`Shaun P. Mahaffy, Esquire
`Anthony H. Sheh, Esquire
`Philip N. Haunschild, Esquire
`Jihad J. Komis, Esquire
`Matthew W. Lachman, Esquire
`WILLIAMS & CONNOLLY LLP
`680 Maine Avenue S.W.
`Washington, DC 20024
`Attorneys for Plaintiff Genevant Sciences GmbH
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`/s/ Travis J. Murray
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`Travis J. Murray (#6882)
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`2
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