Moderna sues BioNTech and Pfizer over new mRNA patent

Moderna has filed a new patent lawsuit against BioNTech and Pfizer at the Unified Patent Court (UPC), marking its first major mRNA-related case in Hamburg. The move comes just weeks after the company lost a key patent in Europe, a setback that led it to file a new lawsuit at the UPC-a forum where it had not previously taken action against the two vaccine manufacturers.

The lawsuit centers on patent EP 3 981 437, which covers a nucleic acid vaccine technology distinct from the EP 3 590 949 patent the European Patent Office (EPO) revoked in September. That decision nullified Moderna’s earlier victories in London and Düsseldorf, leaving the company with limited remaining claims. The new case at the UPC is the first for the Hamburg local division, presided over by Judge Sabine Klepsch, who has prior experience with mRNA disputes while serving at the Düsseldorf Regional Court.

The Hamburg case is part of a broader patent war over mRNA technology, with BioNTech and Pfizer already facing multiple lawsuits at the UPC. In April, CureVac—now owned by BioNTech—filed a claim against Moderna over patent EP 4 108 769, though those proceedings were later discontinued. Meanwhile, GSK is battling Moderna, BioNTech, and Pfizer in The Hague, with a judgment expected in the coming weeks. Other firms, including Arbutus and Genevant, have also targeted BioNTech and Pfizer’s Comirnaty vaccine in separate cases.

The legal environment has shifted dramatically for Moderna. Its EP 949 patent, on the basis of which it had brought legal action, was revoked by the EPO in September, nullifying its prior successes in national courts. The company now relies on divisional applications-such as EP 4 435 100, still under examination, and EP 4 108 671, facing opposition proceedings-to sustain its claims. However, the new UPC lawsuit against BioNTech and Pfizer is based on EP 437, granted later than EP 949, which may narrow the scope of damages sought.

Moderna has clarified it is not seeking an injunction to halt sales of Comirnaty but instead claims damages for all sales made by its competitors since the pandemic’s onset. The timing of the damages calculation may differ from prior claims, as EP 437 was issued after EP 949. The company’s legal team, led by Freshfields, has filed the lawsuit at the UPC, while Hoyng ROKH represents BioNTech. Pfizer has not yet disclosed its legal representatives, though past cases suggest it may involve Taylor Wessing, Clifford Chance, or Pentarc.

The Hamburg division’s handling of this case will be closely watched, as it marks the first significant life sciences dispute in the city since the UPC’s establishment. While most pharmaceutical cases have been filed in The Hague, the Hamburg panel-comprising Judge Klepsch, Stefan Schilling, and Goda Ambrasaité-Balyniené-brings specialized experience to the mRNA technology at issue. The division has heard cases mainly concerning medical devices and products, including disputes over cochlear implants, breast implants, and surgical stapler cartridges, but this is its first mRNA case.