Who Pays for the 500 Million COVID Doses? Section 1498 in Arbutus v. Moderna

by Dennis Crouch

Arbutus Biopharma Corp. v. Moderna, Inc., No. 26-1581, oral args set for Nov 5 at the Federal Circuit.

You may recognize Moderna as key COVID vaccine developer/distributor.  Arbutus holds patents on lipid nanoparticle technology that Moderna used for its vaccine (without a license). The US govt bought about 500 million doses from Moderna that were distributed to the public.

The question on appeal is whether Moderna owes the money for infringement; or does the US govt under 28 U.S.C. § 1498(a).

Were the COVID-19 vaccine doses that the federal government bought from Moderna and gave to the public made "for the Government"?

If so, the Fed Govt takes responsibility for paying under Section 1498(a), and the case would need to be pursued in the Court of Federal Claims (CFC), with the United States as the defendant. If not, Moderna pays - something like $1.3 billion.

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