The Court of Federal Claims recently denied the United States’ motion to dismiss a patent infringement suit related to production of a COVID-19 vaccine. The court held that it had jurisdiction because the plaintiff filed its claim there before it filed a parallel suit in a district court and because it adequately pleaded the government’s involvement.
The patent at issue claims a fluorescent protein that can be used in vaccine development. Pursuant to a U.S. government contract awarded through Operation Warp Speed in 2020, ModernaTX, Inc. allegedly developed a COVID-19 vaccine using a fluorescence-based assay that the plaintiff alleges was based on its patented invention and used without permission. The plaintiff first filed suit against the United States in the Court of Federal Claims. The next day, it sued Moderna in a district court.
The United States moved to dismiss the Court of Federal Claims complaint for three reasons. First, the United States argued that 28 U.S.C. § 1500 mandated dismissal because the statute divests the court of jurisdiction when there is a suit in another forum based on substantially the same operative facts. The court rejected that argument, explaining that the statute divests jurisdiction only when the non-Court of Federal Claims proceeding is filed first. Because the plaintiff filed the Court of Federal Claims suit first, § 1500 did not bar the court’s jurisdiction.
Second, the United States argued that the plaintiff could not maintain a claim under 28 U.S.C. § 1498(a) while simultaneously suing Moderna in district court for the same infringement. Under § 1498(a), suit in the Court of Federal Claims is the exclusive remedy against a private company if the allegedly infringing acts were performed on behalf of, and for the benefit of, the United States. The United States argued that § 1498(a) was the only method by which the plaintiff could recover against Moderna. Suing Moderna in the district court on the same operative facts, it argued, was inconsistent with that exclusivity. The court disagreed. It found that the plaintiff’s allegations of contractual provisions authorizing Moderna’s conduct and giving the government usage rights to the vaccine established jurisdiction, which was not defeated by the parallel district court suit.
The court likewise rejected the defendant’s third reason for dismissal—that the plaintiff had failed to state a claim because it had expressly reserved the right to argue that Moderna was the relevant infringing party. The court found that the plaintiff had met the pleading standard by plausibly alleging facts about the contractual relationship between Moderna and the government. Those allegations, the court found, were not inherently contradicted by the reservation. Having found a facially plausible claim and no jurisdictional bar under § 1498(a) or § 1500, the court denied the motion.
mNG Bio, LLC v. United States, No. 26-12 (Fed. Cl. June 12, 2026)