Arbutus and Brinkhof celebrate interim success in mRNA case against Moderna

Arbutus' lawsuit against the mRNA vaccine Spikevax involves 15 Moderna companies. Now, the local division The Hague has declared itself competent to hear the lawsuits against European companies based in non-UPC member states. It is a dispute with significant Dutch influence, in which Brinkhof has won an interim victory as counsel for Arbutus, without the involvement of UPC partner firm Vossius.

Since the ‘long-arm jurisdiction’ ruling of the Düsseldorf local division in Fujifilm vs Kodak, and following the CJEU’s decision in BSH Hausgeräte vs Electrolux, pan-European cross-border injunctions have become a hot topic.

While the local division The Hague has not yet issued such an injunction in Moderna’s fight with Arbutus Biopharma and Genevant Sciences, Moderna has nevertheless failed so far to prevent one at least for countries outside the UPC territory. In two orders, the court declared itself competent to hear the actions against the Moderna companies in Norway, Spain, and Poland. The court rejected Moderna’s requests to decline jurisdiction (case IDs: UPC_CFI_191/2025 and UPC_CFI_192/2025).

All three countries are EPO states but are not participating in the UPC. Poland and Spain are EU states. Judge rapporteur Margot Kokke dismissed the applications because the Spanish and Polish Moderna companies have a direct business relationship with the Dutch company. In the case of the Norwegian company, the business relationship is unclear, but it cannot be ruled out that it is involved in potential infringing activities by the group. Dutch judges have a long tradition of issuing cross-border injunctions.

Moderna Netherlands key

Moderna Netherlands plays a central role in the dispute with its so-called ‘spider in the web’ role in the group’s sales activities. In the court’s view, the company has successfully offered to supply and has sold Spikevax in multiple European countries, including Norway.

Kokke did not yet wish to comment on the UPC’s long-arm jurisdiction in this case. This decision “with respect to defendants Moderna US, Moderna US-TX, Moderna Switzerland, Moderna Spain, Moderna Norway, Moderna UK and Moderna Poland will be dealt with in the main proceedings”, the two orders state.

Kokke rejected Moderna’s motions to deny jurisdiction with respect to the Belgian, German and Polish Moderna companies due to late filing. Moderna considers this to be incorrect.

Experts question whether Moderna even has the possibility to appeal the order. However, the US company could ask the Court of Appeal to review the decision following a decision in the main proceedings,. This is considered likely, unless the court dismisses the infringement suits.

The dispute is still at an early stage. A hearing in the main proceedings is likely to take place in early 2026. In addition to Kokke, presiding judge Edger Brinkman and Samuel Granata are also on the panel.

Moderna will probably also push to have the CJEU review the questions of the UPC’s jurisdiction over non-UPC states and long-arm jurisdiction. If the UPC judges refer these questions to the CJEU, the EU’s highest court would have to deal with the consequences of its BSH vs Electrolux ruling.

Global dispute

Both patents belong to the virology-focused Canadian biotech company Arbutus. The US biotech company Genevant markets an LNP method. Lipid nanoparticles (LNPs) are nano-delivery vehicles that enable efficient delivery of cytotoxic chemotherapy agents, antibiotics, and nucleic acid therapeutics. During the coronavirus pandemic, BioNTech entered into a strategic mRNA partnership with Genevant Sciences focusing on rare diseases.

Both companies are closely linked and are majority-owned by Rivant Science. Arbutus and Genevant believe that Moderna’s Covid-19 vaccine Spikevax infringes the two patents and are seeking monetary relief and injunctions against Spikevax. In addition, they are also seeking damages and injunctions against other Moderna products that use the same LNP technology, including Moderna’s RSV vaccine mRESVIA.

Moderna battles long at EPO

The UPC lawsuits are part of a global dispute with Moderna that originated in the US in 2022. Parallel to the two UPC lawsuits, Arbutus and Genevant also filed lawsuits in Switzerland, Canada, and Japan in March 2025.

The opponents have been fighting at the European Patent Office for some time. Moderna filed an opposition against EP 254 back in 2018. Merck Sharp & Dohme also filed an opposition against the granting of the patent. However, the EPO granted the patent and both opponents appealed. The Technical Boards of Appeals will hear the appeal against EP 254 in early 2026.

Moderna also filed an opposition against EP 767. The patent was applied for and granted in 2024 with unitary effect.