The Biden administration quietly inserted itself into a private patent infringement lawsuit two biotech companies filed against COVID-19 vaccine maker Moderna, in a move experts said could establish a dangerous precedent.
In a surprise filing last month, U.S. Attorney David Weiss issued a "statement of interest" in the case on behalf of the Department of Defense and Department of Health and Human Services (HHS), invoking a rarely-used early 1900s law to argue that the federal government should take on any liability for patent infringement Moderna may be guilty of related to the development of its COVID-19 vaccine.
"Where, as here, the Government directly contracts to procure the allegedly infringing goods or services in a contract that grants authorization and consent, the ‘benefit to the Government’ is inherent," the filing stated. "Indeed, the contractor’s compliance with the contract’s obligations alone demonstrate the benefit: that the Government obtains goods and services for which it pays."
The filing concluded that companies whose patents Moderna may have infringed during COVID-19 vaccine development should be limited to pursuing a claim against the federal government in the U.S. Court of Federal Claims.
