In proceedings before the European Patent Office (EPO), applicants are required to „adapt“ the description to the claims of a patent application once the claims are deemed allowable. The adaptation of the description is an extensive and very costly writing exercise. There was inconsistent case law of the Boards of Appeal (TBoA) on whether and to what extent said adaptation is necessary. The Enlarged Board of Appeal (EBoA) has now decided, and it changes for the worse for the practitioner.
Sanofi has sued Pfizer and Moderna, alleging that their COVID-19 and respiratory syncytial virus (RSV) vaccines infringe patents covering the delivery of messenger RNA using lipid nanoparticles it acquired through the acquisition of Translate Bio in 2021.
CureVac has filed a federal lawsuit accusing Moderna of patent infringement over its mRNA-based COVID-19 vaccine Spikevax. The German biotech claims that Moderna used its proprietary methods for stabilising messenger RNA without authorisation and is seeking monetary damages framed as royalties on Spikevax sales.
The Unified Patent Court and the unitary patent were established to make patent litigation in Europe easier, faster and more affordable. It has been particularly emphasized that the new system was designed to enable small and medium-sized enterprises to enforce their rights more effectively and rapidly. The reality now suggests differently. Litigation in Europe has become quite fragmented, more complex and more expensive than ever – a nice playground for deep pockets.
Patent disputes are part of everyday life in pharma. What is unusual is the timing. More than three years after the peak of the Covid-19 pandemic, Bayer has launched a broad patent offensive against the makers of mRNA vaccines – just as the market has cooled and the pandemic feels firmly in the rear-view mirror. Understandable from a financial perspective, perhaps, but still raising questions about the timing.
Andrej Lišakov / Unsplash+
Boehmert & Boehmert
Bayer AG