Moderna and Freshfields win against BioNTech and Pfizer at UK Court of Appeal

In early August, the UK Court of Appeal unanimously dismissed BioNTech and Pfizer’s appeal against a UK High Court judgment (case ID: CA-2024-002295, 002325).

Lord Justices Richard Arnold, Richard Snowden and Andrew Moylan were unanimous in their ruling. They found that Moderna’s patent EP 3 590 949 does not lack novelty and that the corona vaccine Comirnaty infringes the patent. This confirms the first-instance judgment.

First UK victory for Moderna

In early July 2024, High Court judge Richard Meade ruled in a combined judgment that Moderna’s EP 3 718 565 is not valid. Nevertheless, Moderna prevailed as judge Meade found EP 949 both valid and infringed by the two competitors.

Shortly after the ruling, BioNTech and Pfizer appealed. While they received permission to appeal regarding EP 949, both the High Court and Court of Appeal refused permission regarding EP 565. This means EP 565 is now finally invalidated in the UK, while litigation over this patent continues in other European countries.

Final destination Supreme Court

Following the latest UK ruling, BioNTech and Pfizer can appeal to the Supreme Court. According to press reports, both companies have indicated their intention to do so, maintaining that EP 949 is not valid. JUVE Patent does not know whether they have yet asked the Supreme Court to accept an appeal.

The Supreme Court only accepts appeals in rare cases where there is a general legal interest. If it refuses the request, or if it upholds the Court of Appeal judgment, Moderna could seek damages from BioNTech and Pfizer in separate proceedings.

Focus on EPO proceedings

The battle between the pharmaceutical companies will continue. Following this latest UK ruling, attention now turns to the Boards of Appeal at the European Patent Office.

The EPO revoked EP 565 for obviousness in late autumn 2023, but Moderna appealed. The Boards will hear this appeal in January 2026.

The EPO Opposition Division upheld EP 949. BioNTech’s and Pfizer’s appeal against this decision goes before the Boards of Appeal in September 2026. In contrast to the EPO and UK outcomes, the Regional Court of The Hague revoked the Dutch part of EP 949. The Court of Appeal in The Hague will hear the appeal in September 2025.

Attack on multiple fronts

The dispute began in 2022 when Moderna started suing its Mainz-based competitor BioNTech and Pfizer in several countries, including Germany, the Netherlands, Belgium, Ireland and the UK. Moderna’s patents-in-suit, EP 949 and EP 565, protect “ribonucleic acids containing n1-methyl-pseudouracils and uses thereof” and “respiratory virus vaccines” respectively.

While Moderna developed its Spikevax vaccine in 2020, Pfizer and BioNTech simultaneously began selling their COVID-19 vaccine under the Comirnaty brand. When filing the first infringement suits in 2022, Moderna emphasised it was not seeking to remove Comirnaty from the market but rather seeking damages for all sales made by its competitors after 8 March 2022.

A parallel trial in the UK regarding Moderna’s patent pledge during the pandemic has now concluded.

In Germany, Moderna also prevailed in the trial over EP 949. In March 2025, Düsseldorf Regional Court ordered BioNTech and Pfizer to provide information on their use of EP 949, and on prices and profits achieved. The judgment also stated that the defendants must pay reasonable compensation and damages. An appeal is pending but Düsseldorf Higher Regional Court will likely await the outcome of the EPO validity proceedings.

Continuity of counsel

For legal advice in the infringement proceedings across several European countries, Moderna continues to rely on a pan-European team from Freshfields, led by Amsterdam partner Rutger Kleemans.

In the UK technical trial, Moderna relied on barristers Piers Acland from 11 South Square and Stuart Baran from Three New Square, instructed by Freshfields. While London-based partner Laura Whiting is in the lead for the technical trial Christopher Stothers was responsible for the pledge trial. Freshfields associates Nathan Nadeson and Jeremy Manger were also involved.

For Pfizer, Simon Cohen and Nigel Stoate of Taylor Wessing instructed a Three New Square team including Tom Mitcheson and Alice Hart. Taylor Wessing also represents Pfizer in Germany, Belgium and the Netherlands.

BioNTech retained Penny Gilbert, Tess Waldron and Peter FitzPatrick from London IP firm Powell Gilbert. For the appeals trial, BioNTech again relied on Michael Tappin from 8 New Square, who led the first instance trial.

Anna Matthew, Daniel Down and Gabriella Simon are all part of the Powell Gilbert team representing BioNTech. In other key jurisdictions such as Germany, Belgium and the Netherlands, BioNTech relies on international IP boutique Hoyng ROKH Monegier.

Both Powell Gilbert and Hoyng ROKH Monegier are also advising the German company in new UPC cases filed by GSK at the local division The Hague.