Setback for CureVac in the UK

On Tuesday, the UK High Court declared the two CureVac patents EP 3 708 668 and EP 4 023 755 invalid. Judge Richard Meade based his ruling on a lack of plausibility, insufficiency and lack of inventive step (case ID: HP-2022-000023).

Richard Meade

However, CureVac can appeal. Judge Meade has scheduled a so-called from of order hearing for the beginning of November. CureVac can then ask the High Court judge whether he will accept an appeal. If Meade refuses, the company can ask the Court of Appeal to review the judgment in accordance with English law. It is likely that CureVac will appeal.

Nevertheless, the infringement proceedings relating to the two patents are now suspended until the validity of the patents has been finally clarified.

CureVac looks to Supreme Court

CureVac had also enforced a third patent in the UK against BioNTech and Pfizer. EP 1 857 122 protects a process that improves the expression of mRNA in cells. Judge Meade did not need to give a verdict on this as CureVac acknowledged the patent’s invalidity. However, this is not the end of the matter, as CureVac intends to have the Supreme Court review the applicable UK law.

Richard Meade writes about this in his judgment, “The trial of the validity of EP 122 has been adjourned by agreement because, very briefly, CureVac accepts that it is invalid on the present state of the law (Warner-Lambert v Actavis: see below), but wants to argue on appeal to the Supreme Court that the law should change, and the case management consequences made trying it now impractical.”

According to information from JUVE Patent, the dispute over EP 122 could continue in 2025, when questions of infringement of the patent by BioNTech’s and Pfizer’s covid19 vaccine Comirnaty may also be raised.

Challenges in Germany

EP 122 is part of CureVAc’s wider attack againstBioNTech and Pfizer. In December 2023 the German Federal Patent Court nullified EP 122. CureVac appealed against this decision before the Federal Court of Justice.

EP 668 is also part of the German dispute. CureVac accuses the two opponents at the Regional Court Düsseldorf of infringing both EP 122 and EP 668 as well as three of its utility models (case IDs: 4c O 46-48/22 and 4c O 51/22). BioNTech has also challenged the utility models and filed an opposition at the EPO against EP 668 and EP 755. The infringement proceedings in Germany are currently stayed to await the validity decisions.

Powell Gilbert for BioNTech

Curevac, BioNTech and Pfizer have relied on the same law firms in the UK since the beginning of the disputes.

Powell Gilbert is BioNTech’s regular advisor. The firm is not only coordinating the dispute with CureVac but is also conducting the UK proceedings. The current decision involved partners Penny Gilbert and Joel Coles, as well as associates Callum Beamish-Lacey, Hannah Smith-Willis, and Adam Mackinnon.

BioNTech’s barristers were Michael Tappin and Michael Conway from 8 New Square, as well as Tom Alkin from 11 South Square. Pfizer’s barrister was Jeremy Heald from Three New Square. He was instructed by Taylor Wessing partners Simon Cohen and Nigel Stoate.

Taylor Wessing is also representing Pfizer in the German dispute. Here BioNTech relies on a team from Hoyng ROKH Monegier.

Bird & Bird for CureVac

Bird & Bird partners Morag Macdonald and Mark Hilton have been advising CureVac since the beginning of the dispute. They work closely with the practice led by Oliver Jüngst in Germany, where the dispute as a whole began. Associates Georgina Straughan and Imogen Kelso are also members of the UK team.

CureVac’s barristers in the dispute over EP 668 and EP 755 are Piers Acland and Adam Gamsa from 11 South Square.