GlaxoSmithKline Biologicals SA v. Moderna Netherlands B.V and others, UPC Court of First Instance, Local Division The Hague, 10 August 2026, Case nos. UPC_CFI_619/2025, UPC_CFI_1526/2025, UPC_CFI_2033/2025
This case concerns the potential stay of UPC proceedings in view of parallel EPO opposition proceedings.
GlaxoSmithKline Biologicals SA (GSK) is the proprietor of two EP patents – EP4226941 and EP4066856, both of which are divisional applications of a common parent. These Patents were asserted against a number of Moderna entities, and counterclaims for invalidity were filed against both. An oral hearing concerning infringement and validity of both patents had been scheduled for 2 October 2026.
On 24 June 2026, the Opposition Division revoked EP’941. On 20 July 2026 the Technical Board of Appeal (TBA) of the EPO confirmed the previous revocation of the other patent, EP’856, in opposition proceedings. A written decision setting out the grounds for revocation is expected from the TBA on or before 19 October 2026.
Ultimately, the order issued by the Local Division disposed of the invalidity counterclaim concerning the finally invalidated patent EP’856 (UPC_CFI_2033/2025), based on Rule 360 UPC, since that action was now devoid of purpose, and ordered GSK to bear Moderna’s legal costs.
With regard to EP’941, GSK requested that the proceedings not be stayed, or alternatively requested various options to continue with at least some parts of the proceedings, whilst Moderna requested a stay of proceedings until a final appeal decision had been reached by the EPO.
The Local Division determined that the likelihood of the claims of EP’941 being held invalid was a relevant consideration to the question of whether to stay proceedings, and that this could only be properly assessed once the TBA reasoning in relation to the invalidity of the other patent, EP’856, had been issued. In view of this, the order cancelled the oral hearing of 2 October 2026 (since the TBA reasoning was not expected until after this date), and postponed the decision on a stay until after the TBA reasoning is issued. The order also gave the parties a further opportunity to lodge a written statement concerning the impact of the TBA decision on the pending infringement and revocation proceedings.
This ultimately seems to be a pragmatic decision, which concedes a small delay in order to allow the reasoning of the EPO to be taken into account, but ultimately defers a decision on a stay, and therefore a much more significant delay, until it is clear how relevant this reasoning is to the ongoing proceedings.
A copy of the Order can be found here.
