GlaxoSmithKline Biologicals v Moderna Netherlands (CFI, 10 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 10 August 2026 (UPC_CFI_619/2025, UPC_CFI_1526/2025 and UPC_CFI_2033/2025), The Hague Local Division deals, in the dispute between GlaxoSmithKline Biologicals SA and thirteen Moderna group companies, with the consequences of EPO decisions on two divisional patents stemming from the same application. EP 4 066 856 having been finally revoked by the Technical Board of Appeal on 20 July 2026, the counterclaim directed at it is disposed of as devoid of purpose. For EP 4 226 941, revoked in opposition on 24 June 2026, the division postpones its decision on the stay request and cancels the oral hearing of 2 October 2026, pending the Board’s written reasons.

Question

Should the division rule at once on a stay, raised of its own motion on 29 July 2026 and then requested by Moderna, where the Technical Board of Appeal has revoked a related divisional patent but has not yet issued its reasons?

Decision

As the parties agree that there is no need to adjudicate the counterclaim against EP 4 066 856, the division closes that file and orders GSK, as the unsuccessful party, to bear Moderna’s costs, to be fixed in separate proceedings or, preferably, by agreement (paragraph 6). The fate of that patent has only partial implications for the infringement action, which also rests on EP 4 226 941 (paragraph 7). The likelihood that the latter’s claims will be held invalid is relevant to the stay, but can only be assessed in the light of the Board’s written reasons (paragraph 8). Without ruling on the alternatives put forward by GSK, the division allows the parties to file submissions confined to the impact of those reasons within four weeks of their issue, and to reply within three weeks.

Key points for practice

• The division may consider a stay of its own motion where the EPO has ruled on a patent of the same family, and prefers to see the reasons rather than rule on the outcome alone.
• The submissions ordered are strictly confined to the impact of the EPO’s reasons on the EP 4 226 941 proceedings.

Provisions applied

Rules of Procedure

Rules 295 and 360

Case law cited

No UPC decision, the order refers to the decisions of the EPO Opposition Division of 24 June 2026 and of the Technical Board of Appeal of 20 July 2026.

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.