Judge Wolson Issues Key Summary Judgment Ruling on Eve of Trial in Arbutus v. Moderna

"On February 2, 2026, U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson, sitting by designation in the U.S. District Court for the District of Delaware, made several key summary judgment rulings in advance of trial in Arbutus Biopharma Corporation and Genevant Sciences GmbH (collectively "Arbutus") v. Moderna, Inc. and ModernaTx, Inc. (collectively " Moderna "), No. 1:22-cv-00252 (D. Del.)."

"(1) the term "for the Government" in 28 U.S.C. § 1498 means that the use of a patented product must be for the benefit of the Government itself, not the benefit of the patients who receive it, therefore precluding Moderna from asserting Section 1498 as an affirmative defense for infringement based on the vast majority of vaccines it sold to the Government in this case;"

On February 2, 2026, Judge Joshua D. Wolson, sitting by designation in Delaware, issued summary judgment rulings in Arbutus Biopharma and Genevant v. Moderna, No. 1:22-cv-00252. The court held that 28 U.S.C. § 1498's phrase "for the Government" requires a use that benefits the Government itself, not merely patients, thereby largely precluding Moderna from invoking Section 1498 for vaccines sold to the Government. The court also found that Arbutus's removal of "about" from claimed lipid ranges during prosecution invoked prosecution history estoppel, barring doctrine-of-equivalents claims and requiring Arbutus to prove literal infringement under a heightened standard. The asserted patents include Molar Ratio Patents and U.S. Patent No. 9,504,651.

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