Short Summary
This procedural order concerns an infringement action brought by GlaxoSmithKline Biologicals SA against fifteen Moderna entities regarding European patents EP4066856 and EP4226941. The Defendants filed a statement of defence and a counterclaim for revocation covering both patents. The Court exercised its discretionary power under Rule 302.1 of the Rules of Procedure to order the Defendants to split the counterclaim for revocation into two separate actions, one for each patent, due to the different stages of pending EPO opposition proceedings and the capped court fee structure for revocation counterclaims.
Detailed Summary
The Claimant, GlaxoSmithKline Biologicals SA, initiated infringement proceedings against fifteen Defendants belonging to the Moderna group, including Moderna Netherlands B.V., Moderna Biotech Spain S.L., Moderna Biotech UK Limited, ModernaTX, Inc., and Moderna Inc., among others. The proceedings were registered under case number UPC_CFI_619/2025 and concerned two European patents owned by the Claimant: EP4066856 and EP4226941. The case was heard by a panel of the Local Division The Hague, presided by Edger Brinkman, with Stefan Schilling, Martin Schmidt, and Margot Kokke (judge rapporteur). The language of proceedings was English.
On 11 November 2025, the Defendants submitted a statement of defence together with a counterclaim for revocation, which was registered as a separate case under UPC_CFI_1526/2025. This counterclaim for revocation challenged the validity of both patents at issue in the infringement action. The question before the Court was whether the combined counterclaim should be maintained as a single action or separated into two distinct proceedings, one for each patent.
& Analysis
The Court invoked its discretionary power under Rule 302.1 of the Rules of Procedure to order the separation of the proceedings. The Court identified several practical and procedural reasons supporting this decision. First, the two patents were at different stages of opposition proceedings before the European Patent Office, and the possible different outcomes for each patent made it procedurally impractical to combine the two counterclaims for invalidity in a single action. Second, the Court qualified the case as complex and large, and noted that the payment of court fees warranted separation. While in an infringement action concerning several related patents, the involvement of multiple patents can be taken into account when determining the value of the action for applying the Rules on Court fees, this is not the case for counterclaims for revocation. The Court emphasized that the court fee per counterclaim action is capped at EUR 20,000, as confirmed in the Guidelines for the determination of the court fees and the ceiling of recoverable costs of the Administrative Committee (Section II.2.a), both in the original version of 2 April 2023 and as recently amended.
Final Order & Ruling
The Court ordered the Defendants, as claimants in the counterclaim for revocation action, to separate or split the proceedings into two counterclaims, one concerning each of the patents at issue (EP4066856 and EP4226941). This procedural order was issued to ensure efficient management of the proceedings given the differing procedural postures of the two patents and the applicable court fee structure.
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 GlaxoSmithKline Biologicals SA vs Moderna et al. is valuable context for structuring arguments or assessing risk in similar proceedings.
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