Moderna argues that because Arbutus and Genevant want royalties on vaccine sales to the federal government, that fight “can only proceed against the Government in the Court of Federal Claims,” rather than in the US District Court for the District of Delaware, where the lawsuit was initially filed.

“Assuming that Moderna’s allegations are correct,” 1498 “would have enabled companies like Moderna to develop and research vaccines without fear of being mired in patent lawsuits, and allowed the government to close vaccine purchase deals without the wild card of unpredictable liability,” said Charles Duan, senior fellow at the free markets think tank R Street Institute.

‘New Phenomenon’

Section 1498 has cropped up in patent cases involving a wide range of industries, including spacecraft, lightbulbs and technology for check-cashing, policy analysts say.

“There’s a long tradition of using Section 1498 in patent infringement cases, and Moderna’s motion to dismiss fits nicely within that tradition,” Duan said.