Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 1 of 5 PageID #: 21859
`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 1 of 5 PagelD #: 21859
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`EXHIBIT 13
`EXHIBIT 13
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`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 2 of 5 PageID #: 21860
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`MATTHEW W. LACHMAN
`(202) 434-5249
`MLachman@wc.com
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`March 22, 2024
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`CONTAINS INFORMATION MODERNA DESIGNTED
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS EYES ONLY
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`Via Email
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`Mark C. McLennan
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`(212) 909-3451
`mark.mclennan@kirkland.com
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`Re:
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`Arbutus Biopharma Corporation and Genevant Sciences GmbH v. Moderna, Inc.
`and ModernaTX, Inc., Case 1:22-cv-00252-MSG (D. Del.)
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`Dear Mark:
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`I write concerning the locations at which Moderna manufactured components of the Accused
`Product, as identified in Moderna’s supplemental response last week to Interrogatory No. 11, and
`the documents Moderna has produced in response to the Court’s February 27, 2024 Order (D.I.
`229).
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`Plaintiffs have been seeking information about the locations at which Moderna manufactures the
`Accused Product and its components for over a year. For example, on March 16, 2023, Plaintiffs
`served Interrogatory No. 11, which requested, inter alia, the location where batches of mRNA
`and
` where manufactured. Moderna refused to provide this information, including
`by objecting to providing information about “batches and/or lots of these starting materials
`and/or intermediates.” Moderna’s Response to Plaintiffs’ Interrogatory No. 11 at 4 (Apr. 17,
`2024). Plaintiffs diligently pursued this information over the next year, with Moderna
`attempting to stifle Plaintiffs’ efforts at every turn. See, e.g., A. Sheh Letter to M. McLennan
`(June 29, 2023) (“Despite the passage of more than four months since the parties first discussed
`this issue, Moderna still has not provided the requested information, and its June 12, 2023,
`supplemental response to Plaintiffs’ Interrogatories Nos. 6 and 11 did not even identify a date
`certain by which Moderna would do so.”); A. Sheh Email to A. Afinogenova (Nov. 7, 2023)
`(Moderna has not supplemented its response to Interrogatory No. 11 . . . . Plaintiffs are entitled to
`discovery into these issues and to test Moderna’s as-of-yet unsupported contentions.”).
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`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 3 of 5 PageID #: 21861
`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 3 of 5 PagelD #: 21861
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`WILLIAMS & CONNOLLYue-:
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`March 22, 2024
`Page 2 of 4
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`HIGHLY CONFIDENTIAL — OUTSIDE COUNSEL’S EYES ONLY
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`Finally, following the Court’s February 27, 2024 Order, Moderna produced some information
`about where these components are manufactured in its March 12, 2024 supplemental response to
`Interrogatory No. 11. That response identified a recently produced document (MRNA-GEN-
`01424228) as “an export of the part number genealogy information for COVID-19 vaccine
`batches from Moderna’s product genealogy dashboard.”
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`Wehave been working to review and understand this new information since receivingit last
`week. Based on ourinitial review, Moderna’s part numbergenealogy information raises new
`questions about where components of the Accused Product are manufactured. As we understand
`it, the documentindicates that there are lots of the Accused Product wherethe last step in
`manufacturing occurs outside the United States, but which are supplied with components
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`manufactured in the United States.
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` MRNA-GEN-01424228
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`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 4 of 5 PageID #: 21862
`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 4 of 5 PagelD #: 21862
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`WILLIAMS & CONNOLLYue-:
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`March 22, 2024
`Page 3 of 4
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`HIGHLY CONFIDENTIAL — OUTSIDE COUNSEL’S EYES ONLY
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`Pi MRNA-GEN-01424228
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` Pres
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`a a7 7
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`Is our understanding correct that this data reflects that at least some lots of the Accused Product
`purportedly “manufactured” outside the United States are supplied with mRNA,
`and/or mRNA-1273 LNP that was manufactured in the United States? If so, has Moderna been
`providing full discovery regarding suchlots, including bylisting them (and/or accounting for
`them) in response to Plaintiffs’ Interrogatory Nos. 6, 11, 13, and 18, see, e.g., MRNA-GEN-
`00939821 (“US Distribution’); including them in its producedsales/financial data, producing
`samples for relevant mRNA-1273 part numbers;! and providing other requested damages-related
`discovery (e.g., RFP Nos. 18, 78-80, 82)? Oris that information that Moderna continues to
`withhold?
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`To be clear, batches supplied with these U.S.-manufactured components infringe irrespective of
`where final assembly and delivery occurred. See 35 U.S.C. § 271(f). Until Moderna
`supplemented its response to Interrogatory No. 11 last week, in response to the Court’s Order,”
`Modernahadfailed to provide discovery showingthat lots of the Accused Product manufactured
`outside the United States were supplied with mRNA and/ori manufactured in the
`United States, notwithstanding Plaintiffs’ repeated requests for such information. Please confirm
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`1 We note Plaintiffs have inquired about mRNA-1273 LNP part number 50099, which we
`understand is the part numberapplicable to LDP Batch No. 7006822057 shown in thefirst table
`above. See, e.g., T. Sheh Email to A. Afinogenova (Mar. 18, 2024).
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`2 See M. McLennan Email to T. Sheh (Mar. 12, 2024)(“Tonight we’ll be serving an interrogatory
`supplement that will provide more information about the spreadsheets we produced and comply
`with Paragraph 1(a) of the Court’s Order dated February 27, 2024.”).
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`Case 1:22-cv-00252-MSG Document 361-15 Filed 06/21/24 Page 5 of 5 PageID #: 21863
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`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`March 22, 2024
`Page 4 of 4
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`by Wednesday, March 27, 2024, that we are correctly interpreting this data, and provide the
`answer to our question above regarding discovery, so that we can evaluate Moderna’s position
`and whether an amendment to our Complaint is warranted in light of this new information.
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