AIPLA Files Amicus Brief in Arbutus Biopharma Corp. v. Moderna, Inc.

Arlington, VA. June 5, 2026 – The American Intellectual Property Law Association (AIPLA) filed an amicus brief in Arbutus Biopharma Corp. v. Moderna, Inc. AIPLA’s brief addresses the legal framework that courts should apply in determining when 28 U.S.C. § 1498(a) requires patent infringement claims to be adjudicated in the United States Court of Federal Claims rather than in federal district courts. The brief argues that, under the statute’s plain language, the allegedly infringing activity must be both “for the Government” and undertaken “with the authorization and consent of the Government.” It further contends that, in the context of federal procurement, courts --- not the executive branch --- must ultimately decide whether these requirements have been satisfied, and that neither the inclusion of a FAR Authorization and Consent clause nor the Government’s own determination is dispositive.

Finally, the brief asserts that, under the extraordinary circumstances of the COVID-19 pandemic, the Government’s direct procurement of certain vaccine doses administered to the general public was undertaken “for the Government” within the meaning of the statute, in part because of the pandemic’s direct impact on government operations and revenues. Accordingly, the brief argues that the district court’s contrary decision should be reversed.