Moderna has filed a lawsuit against BioNTech and Pfizer at the Unified Patent Court (UPC) in Hamburg, seeking damages for the competitors’ Covid-19 vaccine sales. This move comes just two weeks after the US company lost a key patent at the European Patent Office, a setback that nullified previous national court victories in London and Düsseldorf. The UPC case is based on a different patent, EP 3 981 437, which protects a nucleic acid vaccine and was granted later than Moderna’s previously invalidated patent EP 3 590 949.
Legal battles continue at the EPO
The European Patent Office revoked Moderna’s key patent EP 3 590 949 in mid-September. The Boards of Appeal also upheld the revocation of another patent, EP 3 718 565, back in January. Despite this, Moderna is pursuing the new UPC case. The company is not seeking to ban BioNTech and Pfizer from selling Comirnaty or to prevent future sales. Instead, Moderna is claiming damages for all sales made since the start of the pandemic. The calculation period for these damages may differ from previous claims due to the later grant date of the new patent.
Moderna’s legal strategy includes divisional applications stemming from the revoked EP 949 patent. The application EP 4 435 100 is still at the examination stage, while EP 4 108 671 is currently in opposition proceedings. The Hamburg case marks the first major mRNA patent dispute at the local division, presided over by judge Sabine Klepsch. The panel also includes Stefan Schilling and Goda Ambrasaité-Balyniené.
Previous mRNA disputes and legal teams at the UPC
The Hague local division has already heard several mRNA patent cases. GSK is currently suing Moderna and BioNTech there. Arbutus and Genevant also filed claims in August targeting the Comirnaty vaccine. She previously dealt with mRNA disputes at the Düsseldorf Regional Court.
Pfizer and BioNTech have new counsel
Pfizer has not yet announced its legal representatives for the Hamburg case. Winston Taylor typically handles cases in Europe with German Taylor Wessing lawyers. However, Clifford Chance and Pentarc have increasingly played a role in recent patent disputes involving the pharma giant. On the other side, BioNTech is being represented by Hoyng ROKH Monegier, with partners Christine Kanz and Theo Blomme leading the defence. Mirko Weinert and Max von Leitner complete the team.
