GlaxoSmithKline Biologicals v Moderna Netherlands (CFI, 14 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 11 September 2026, the panel of the Hague Local Division hearing GlaxoSmithKline Biologicals SA v Moderna (EP 2 590 626) revoked, after the oral hearing of 1 September 2026, the judge-rapporteur’s order excluding GSK’s new cryo-TEM imaging reports as late-filed. The reports are admitted, with a written explanation from GSK and a written response from Moderna. The order shows that a ruling excluding evidence can be revisited even during the oral phase where the hearing reveals that the evidence is central.

Question

May the panel, after the oral hearing, revoke a Rule 105.5 order excluding late-filed evidence, and on what conditions?

Decision

The original exclusion was justified, but the hearing showed that the location of the mRNA within the particles, the presence of water and the nature of the aqueous core are decisive for infringement, so fairness required admitting the reports (paragraph 7). The evidence is limited, already known to the parties and concerns Moderna’s own products (paragraph 8). Moderna’s procedural objection was dismissed: Rules 334 and 335, together with Rule 331.3, allow a case management order to be varied or revoked at any stage, including the oral phase (paragraph 10). The right to be heard under Article 76(2) UPCA is secured by word-limited written submissions (paragraph 11), and the target date for the decision is unaffected (paragraph 12).

Key points for practice

• Evidence excluded as late-filed may be readmitted after the hearing if the debate shows it to be decisive, provided both sides can comment in writing (paragraphs 7 to 11).

Provisions applied

Agreement on a Unified Patent Court

Art. 76(2)

Rules of Procedure

Rules 105.5, 114, 118.6, 331.3, 334, 335 and 337

Other provisions

European Convention on Human Rights, Art. 6, Charter of Fundamental Rights of the European Union, Arts 41(2) and 47

Related decisions

• GlaxoSmithKline Biologicals SA v Moderna Netherlands, 12 June 2026, Rule 105.5 order excluding the reports, revoked on that point.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.