Short Summary
This procedural order of the Local Division The Hague concerns a Rule 333 review of a Judge Rapporteur's order on preliminary objections raised by 15 Moderna entities in two infringement actions brought by Genevant Sciences GmbH and Arbutus Biopharma Corporation concerning European patents EP 2 279 254 and EP 4 241 767. Moderna had challenged the court's international jurisdiction, local jurisdiction, and long-arm jurisdiction over various defendants. The full panel confirmed the Judge Rapporteur's order and dismissed Moderna's request for interim appeal.
Detailed Summary
This procedural order, dated 18 August 2025, was issued by the full panel of the Local Division The Hague of the Unified Patent Court in cases UPC_CFI_191/2025 and UPC_CFI_192/2025, concerning a Rule 333 review of a Judge Rapporteur's order on preliminary objections.
Background: By uploading statements of claim dated 3 March 2025, Claimants Genevant Sciences GmbH and Arbutus Biopharma Corporation initiated two separate infringement proceedings against the same fifteen defendants, all belonging to the Moderna group. Case 191/25 concerned EP 2 279 254 and case 192/25 concerned EP 4 241 767, both owned by Arbutus Biopharma Corporation.
Preliminary Objections: Moderna UK filed preliminary objections under R. 19 RoP on 22 April 2025 in both cases, and Defendants 1-14 filed additional preliminary objections on 24 April 2025. Moderna raised several grounds for dismissal: (1) lack of international jurisdiction for Moderna Norway, Spain, and Poland because they are not domiciled in Contracting Member States; (2) lack of local jurisdiction of the Local Division The Hague under Art. 33(1)(a) and/or (b) UPCA for defendants not domiciled or accused of infringing acts in the Netherlands; (3) lack of long-arm jurisdiction for acts outside UPC territory (Poland, Spain, Monaco, Norway, Greece, Hungary, Ireland, Iceland, Turkey); and (4) in case 191/25 only, that formal requirements for withdrawal of the opt-out were not met because the withdrawal was only filed on behalf of Claimant 2 (Arbutus) and not also on behalf of Protiva Biotherapeutics Inc., which is registered as patent proprietor in Greece, Hungary, and Austria.
Judge Rapporteur's Order: On 23 May 2025, the Judge Rapporteur issued a Procedural Order (ORD_21852/2025) which was rectified on 4 June 2025. The operative part stated: (I) the decision concerning long-arm jurisdiction with respect to defendants Moderna US, Moderna US-TX, Moderna Switzerland, Moderna Spain, Moderna Norway, Moderna UK, and Moderna Poland would be dealt with in the main proceedings; and (II) all other preliminary objections were dismissed.
R.333 Application: On 6 June 2025, Defendants filed a R. 333 application requesting review of the PO Order by the entire panel, and alternatively requesting leave to appeal.
Court's Reasoning: The full panel examined Moderna's arguments. Regarding the opt-out argument in case 191/25, the court noted that the patent register showed Arbutus Biopharma Corporation as the sole proprietor of EP 2 279 254, and Protiva Biotherapeutics Inc. was not registered as proprietor. The court found that the withdrawal of the opt-out was therefore properly filed by Arbutus alone. Regarding local jurisdiction, the court found that Moderna Netherlands is domiciled in the Netherlands and plays a central role in the sales activities of Spikevax, having successfully offered to supply and sold the product in 17 European countries including Norway. For Moderna Spain, the Claimants argued that it holds the marketing authorization (MA) for Spikevax, makes use of it, and has allowed other Moderna entities to use its MA to offer, place, and use Spikevax on the European market, which qualifies as infringement or at least as facilitating infringement under Art. 63 UPCA. The court found that since Moderna Netherlands and Moderna Spain are both alleged to infringe the same national parts of a European patent with the same product in the same country, they qualify as co-defendants within the meaning of Art. 8(1) Brussels I recast Regulation. Regarding Norway, the court found that both Moderna Netherlands and Moderna Norway allegedly perform infringing activities in Norway, establishing competence based on Art. 6(1) Lugano Convention. The court concluded that the Claimants' assertions were not so far-fetched as to be deemed entered with the sole object of ousting the courts of Spain and Norway.
Final Order: The full panel (1) confirmed the PO Order of the Judge Rapporteur of 23 May 2025, as rectified on 4 June 2025, and (2) dismissed the request for interim appeal to this decision.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before The Hague (NL) Local Division. Understanding the court's reasoning in Genevant Sciences GmbH and Arbutus Biopharma Corporation vs Moderna Group Entities (UPC_CFI_191/2025 and UPC_CFI_192/2025) is valuable context for structuring arguments or assessing risk in similar proceedings.
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