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• ↓ Patentees File Claim under 28 U.S.C. § 1498 before Court of Federal Claims, and Federal Government Files Motion to Dismiss under 28 U.S.C. § 1500
• ↓ Amici Address Section 1498 Scope in Moderna COVID-19 Infringement Appeal: In Favor of Reversal
• ↓ Amici Address Section 1498 Scope in Moderna COVID-19 Infringement Appeal: In Favor of Affirmance
• ↓ Arbutus Responds to Moderna’s Appeal of District Court Infringement Judgment over COVID Vaccines
• ↓ Moderna Appeals District Court Infringement Judgment over COVID Vaccines
• ↓ USPTO Requires Foreign-domiciled Patent Applicants and Owners to Be Represented by USPTO-registered Practitioners
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"In addition to Arbutus Biopharma and Genevant Sciences defending on appeal the District Court’s summary judgment decision in their favor, these plaintiffs filed their complaint against the Federal Government pursuant to 28 U.S.C. § 1498 for recompense before the Court of Federal Claims (No. 26-446 C) resulting from Moderna’s infringing activities relating to patented lipid nanoparticle components of their mRNA anti-COVID-19 vaccine.  Plaintiffs argue that their position is supported by the statute and by Moderna’s (and the Government’s) own assertions and arguments in the prior litigation now on appeal.  Also mentioned is the threat that they may not have access to this remedy due to statute of limitations restrictions in the time it will take the Federal Circuit to rule on Moderna’s appeal, and a detailed recitation of their grounds for asserting infringement for each of the infringed patents (U.S. Patent Nos. 8,058,069; 8,492,359; 8,822,668; 9,364,435; 9,504,651; and 11,141,378)."

"In response, the Government filed a Motion to Dismiss under the Rules of the U.S. Court of Federal Claims (RCFC) 12(b)(1) and invoked 28 U.S.C. § 1500 asserting that until the matter involving Moderna is finally adjudicated the Court does not have jurisdiction."

"As acknowledged in the Motion, “[t]he Government does not dispute that claims against the Government Employee Doses can jurisdictionally be before this Court.”  But Arbutus included the claims to the Disputed Doses (i.e., those that were administered to the public) in their complaint, and the continued pendency of the district court suit and the operative Delaware judgment present a jurisdictional bar to claims against the Disputed Doses in this suit at this time according to the Government’s motion."

"The Motion also asserts that any remedy as to the Disputed Doses claims “can only lie with either the district court, pursuant to 28 U.S.C. § 1338, or with this Court, pursuant to § 1498″ (emphasis in motion).  Here, because the District Court has already entered judgment there is a risk duplicative liability and duplicative recovery, contrary to § 1500 and § 1498."

Key Topics & Focus Areas for patentdocs.org:

Patentees File Claim under 28 U.S.C. § 1498 before Court of Federal Claims, and Federal Government Files Motion to Dismiss under 28 U.S.C. § 1500

Amici Address Section 1498 Scope in Moderna COVID-19 Infringement Appeal: In Favor of Reversal

Amici Address Section 1498 Scope in Moderna COVID-19 Infringement Appeal: In Favor of Affirmance

Arbutus Responds to Moderna’s Appeal of District Court Infringement Judgment over COVID Vaccines

Moderna Appeals District Court Infringement Judgment over COVID Vaccines

USPTO Requires Foreign-domiciled Patent Applicants and Owners to Be Represented by USPTO-registered Practitioners