CureVac Secures Victory at EPO as Opposition Division Upholds Modified mRNA Patents

In the extensive dispute over mRNA patents, CureVac has achieved a victory at the European Patent Office. The Opposition Division upheld two important patents in amended form. Parallel infringement proceedings in Germany will continue this summer.

CureVac is defending several patents at the EPO and before national civil courts in Germany and UK. At the center of the current dispute are EP 3 708 668 and its divisional patent EP 4 023 755.

Both protect split poly-A tail technology which, according to CureVac, enhances medical efficacy by improving expression of the protein encoded on an mRNA construct. The technology came to prominence during the Covid-19 pandemic when several vaccines based on mRNA technology were developed.

Now the EPO has upheld EP 755 in amended form. According to CureVac, the amendments made in the opposition proceedings further clarify the scope of protection. Only recently, the Opposition Division reached a similar decision regarding EP 668. BioNTech announced that they will appeal the decision.

Pfizer and BioNTech were among those who filed opposition against both patents. CureVac is conducting parallel infringement proceedings against BioNTech in Germany. On 1 July, Chamber 4c of Düsseldorf Regional Court will hear the infringement case concerning both patents (case IDs: 4c O 40/23 and 4c O 51/22). The court recently announced that its presiding judge, Sabine Klepsch, is transferring to the UPC full-time. As Düsseldorf Regional Court informed JUVE Patent upon request, the new presiding judge of the 4c chamber Carsten Haase will preside over the hearing.

Parallel disputes

In the parallel UK dispute, the High Court declared the two CureVac patents invalid last autumn due to lack of plausibility, insufficiency and lack of inventive step (case ID: HP-2022-000023). The judgment is final with no appeal permitted.

Since summer 2022, the parties have disputed various intellectual property rights relevant to mRNA technology. The dispute also focused on CureVac’s EP 1 857 122 B1 and various German utility models. In December 2023, the German Federal Patent Court nullified the German part of EP 122 and deleted the utility models. An appeal is pending at the Federal Court of Justice.

Previously, Düsseldorf Regional Court had suspended the infringement proceedings until the validity question was clarified.