Executive Summary
Promosome LLC initiated an infringement action against BioNTech and Pfizer regarding various Comirnaty® COVID-19 vaccine variants, citing EP 2 401 365. The Defendants raised a preliminary objection challenging the UPC's jurisdiction over alleged infringing acts that occurred before the UPCA came into force (specifically concerning the BA.1 variant). The Court ruled that while its competence is not retroactive, it defers the resolution of this jurisdictional challenge to the main proceedings, allowing the infringement action to proceed for now.
What the Court Held — Ratio Decidendi
While the UPC has subject-matter competence over claims for infringement of a European patent that had not yet lapsed on 1 June 2023, this competence does not apply with retroactive effect. However, the Court acknowledges established case law allowing jurisdiction over infringing acts committed prior to the UPCA's entry into force, and defers the final decision on the preliminary objection to the main proceedings.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Munich (DE) Local Division. Understanding the court's reasoning in Promosome LLC vs BioNTech SE, BioNTech Manufacturing GmbH, BioNTech Manufacturing Marburg GmbH, BioNTech Innovative Manufacturing Services GmbH, BioNTech Europe GmbH, Pfizer Manufacturing Belgium NV, Pfizer SAS, Pfizer AB, and Pfizer, Inc. is valuable context for structuring arguments or assessing risk in similar proceedings.
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