Modernatx, Inc. v Pfizer Ltd & or [2025] EWCA Civ 1032
This was the Court of Appeal decision in this litigation concerning Moderna’s patent EP949, which was asserted against Pfizer/BioNTech’s SARS-CoV-2 vaccines. The appeal considered the judgment of Meade J dated 2 July 2024 ([2024] EWHC 1695 (Pat)).
EP949 claims mRNA in which one of the usual nucleosides (uridine) is replaced with N1-methyl-pseudouridine (“m1Ψ”). At first instance, Meade J upheld the validity of EP949. Pfizer appealed, contending that EP949 lacks novelty over, alternatively is obvious in light of, a prior patent application.
The appeal was heard by LJJ Moylan, Arnold and Snowden. Arnold LJ gave the judgment of the court, in which he dismissed the appeal for largely the same reasons as the Judge’s.
The Court of Appeal held that there is no distinction, as a matter of law or principle, between the application of the law on novelty (including the test of “individualised description”) to items selected from a list, on the one hand, and classes of items, on the other. The CA’s judgment also:
- includes a useful reminder about the role of expert witnesses in patent cases, and
- summarises the applicable law on the identity of the skilled person, confirming that it is appropriate for judges to assess the extent to which the parties’ expert witnesses embody the attributes of the skilled person.
Piers Acland KC appeared for the Respondent, Moderna, instructed by Freshfields Bruckhaus Deringer LLP