Overview
On November 17, 2022, Law360 published an article by Tyler Evans titled "Moderna Ruling Misses On 'Products Sold To US Government'.” The article discusses US District Court for the District of Delaware’s refusal to dismiss patent infringement claims against Moderna for its sale of COVID-19 vaccines to the government. The court said that discovery was needed to determine whether Moderna sold the vaccines for the government and with its authorization and consent; a necessary factor for defense under Title 28 of the U.S. Code, Section 1498.
On the court’s decision, Evans writes, “In denying Moderna's motion to dismiss under Title 28 of the U.S. Code, Section 1498, the court misapplied precedent in the nonprocurement setting to raise the possibility that Moderna's sale of COVID-19 vaccines could have been for the American public instead of the government…The court's reasoning is inconsistent with the purpose of Section 1498, and, going forward, creates uncertainty for contractors that are asked to provide specific deliverables to the U.S. government."
