Moderna hits back against BioNTech and Pfizer in Hamburg

Until now, Moderna had brought legal action against BioNTech and Pfizer exclusively at national level. However, these cases ultimately came to no success. In mid-September, the EPO Boards of Appeal revoked Moderna’s key patent for mRNA vaccines, EP 3 590 949, on the basis of which Moderna had brought legal action against BioNTech and Pfizer.

This decision was a bitter setback for Moderna, as it nullifies the successes it had previously achieved before the national courts in London and Düsseldorf. This litigation also concerned another patent, EP 3 718 565, but the Boards of Appeal had already upheld the revocation of that patent back in January.

Even without these patents, it was already clear that the litigation between the parties would continue. Firstly, there are divisional applications arising from EP 949. EP 4 435 100 is still at the examination stage. The earlier divisional application EP 4 108 671 is currently the subject of opposition proceedings.

Also back in April, CureVac brought a new action against Moderna at the local division The Hague concerning EP 4 108 769 (case ID: UPC-CFI-0001407/2026). However, BioNTech does not appear as a party to this action. The German biotech company had previously attempted to invalidate the patent. In the meantime, BioNTech had acquired its German competitor CureVac, and the legal proceedings between the two companies were discontinued.

Countermoves

Presumably in response to CureVac’s/BioNTech’s move, Moderna filed its first lawsuit at the UPC against the two manufacturers of the Comirnaty Covid-19 vaccine (case ID: UPC-CFI-0003215/2026). The claim is based on EP 3 981 437, which protects a nucleic acid vaccine. The patent is independent of Moderna’s EP 949.

However, according to sources, Moderna is seeking the same relief from BioNTech and Pfizer as in its previous national claims. Early on, Moderna emphasised that it is not seeking to remove Comirnaty from the various markets or an injunction to prevent future sales. Instead, Moderna is seeking damages for all sales made by its competitors since the start of the coronavirus pandemic. However, the period used to calculate the damages is likely to differ from that in the previous claims, as EP 437 was granted later than EP 949, for example.

First major mRNA case in Hamburg

This is the first mRNA case to date for the Hamburg local division, presided over by judge Sabine Klepsch. Stefan Schilling and Goda Ambrasaité-Balyniené complete the panel that will hear the case.

The division has so far heard only a few life sciences cases. In 2024, it heard the PI case brought by Alexion against Amgen — one of the very first life sciences cases for the UPC. Cases mainly concerning medical devices and products followed, including MED-EL vs Nurotron over cochlear implants, Silimed vs Polytech over breast implants, and Cilag vs RiVolution over surgical stapler cartridges.

But presiding judge Klepsch, in particular, is no stranger to mRNA technology. Whilst still serving as a national judge at Düsseldorf Regional Court, she dealt with the dispute between CureVac, BioNTech, and Pfizer.

So far, most pharmaceutical and biotech cases have been filed with the local division The Hague. Here GSK is battling Moderna, as well as BioNTech and Pfizer. A judgment is expected in the coming weeks. In August, Arbutus and Genevant also filed claims relating to mRNA patents at The Hague local division. The target was BioNTech and Pfizer‘s Comirnaty Covid-19 vaccine. Previously, Arbutus and its exclusive licensee had announced a multi-billion settlement with Moderna.

Hoyng ROKH and Freshfields again

Not all legal representatives are known yet. However, on the part of Moderna and BioNTech, their regular advisers have already taken up their positions.

A Freshfields team once again filed the claims on behalf of Moderna. Munich-based partner Nina Bayerl and London-based partner Laura Whiting are leading the team. Kilian Seidel is registered as the main representative. The client partner for Moderna is Rutger Kleemans, who is also usually involved.

On BioNTech’s side, Hoyng ROKH Monegier has taken over the defence. Christine Kanz is the lead partner, alongside Dutch partner Theo Blomme. Partners Mirko Weinert and Max von Leitner complete the team.

Pfizer has not yet announced its representatives. However, Winston Taylor usually handles cases in Europe with German Taylor Wessing lawyers. Recently, however, Clifford Chance and Pentarc have also increasingly played a role.