Summary of Argument
The District of Delaware correctly held that 28 U.S.C. § 1498(a) is inapplicable to a private company that commits patent infringement after entering into a contract with the federal government for payment of vaccine doses distributed by private companies for use by private citizens. See Arbutus Biopharma Corp. & Genevant Sciences GMBH v. Moderna, Inc., No. CV 1:22-cv-00252-JDW, 2026 WL 266389 (D. Del. Feb. 2, 2026). The respondent and other amici address the statutory construction and the modern case law demonstrating that the unauthorized use of a patented invention by a private party in private transactions in the marketplace is not a “use or manufacture for the Government,” 28 U.S.C. § 1498(a), even if the government subsidizes the transaction from the public fisc. In support, Amici further explain that § 1498(a) is an eminent domain statute that is inapplicable to the portion of the contract between Moderna and the federal government in which the government subsidized vaccine doses made for and used by the general public. Thus, § 1498(a) is inapposite to this portion of the contract entered into between Moderna and the federal government under Operation Warp Speed, as opposed to the federal government’s payment for vaccine doses for use by federal employees and military personnel.
The C-100 contract between Moderna, Inc. and the federal government states that the federal government will pay for the manufacture and use of vaccine doses “for the United States Government (USG) and the US population.” In this case, Moderna elides the express distinction in the C-100 contract between the federal government’s payment for vaccine doses for federal employees and military personnel and payment for the vaccine doses “for . . . the US population.” The federal government’s decision to subsidize vaccine doses “for . . . the US population” does not meet the statutory requirement in § 1498(a) that a patented invention is made or used “by or for the United States” or that a contractor like Moderna made or used a patented invention “for the Government.”
This is a critical distinction in applying § 1498(a), as its plain text, legislative history, and supporting historical case law confirm that it is an eminent domain statute. It is inapplicable to the federal government’s policy decisions to subsidize private transactions in the marketplace, such as paying for the costs of private citizens receiving vaccine doses from private companies. This statute authorizes the U.S. Court of Federal Claims to adjudicate a claim by a patent owner for “reasonable and entire compensation” when its patented invention is “used or manufactured by or for the United States without license of the owner.” Id. (emphasis added). Thus, this Court should affirm the district court’s decision that § 1498(a) is inapplicable to the patent infringement claim by Arbutus Biopharma Corporation and Genavent Sciences GBMH against Moderna for the unauthorized manufacture and use of vaccine doses “for the . . . US population,” as distinguished from the express portion of the C-100 contract in which the federal government paid for vaccine doses to be manufactured and used “for the United States Government.”
View full amicus brief, signed by 17 former judges, former officials, and academic scholars.