Moderna Faces Questions Over Vaccine Patent Defence

A US appeals court has questioned Moderna's attempt to rely on government-contractor protections in a major patent dispute involving technology used in its COVID-19 vaccine. The case concerns allegations brought by Arbutus Biopharma and Genevant Sciences, which contend that Moderna infringed patents associated with technology used in the development of its Spikevax vaccine. Moderna disputes liability and has argued that federal law protects it from certain patent claims because the vaccine was developed and supplied in connection with the US government's pandemic response. At a hearing reported by Reuters on 5 November, judges examined the scope of those protections.

The central legal question concerns whether the relevant work was performed for the government in a manner that would shift liability away from the contractor. Moderna's position has received support from the US Department of Justice, which has raised concerns about the implications for government procurement if the protections are interpreted too narrowly. However, the opposing parties argue that the circumstances do not justify the immunity Moderna seeks. A lower court previously rejected the company's argument, prompting the appeal. The appellate judges must therefore consider how the relevant statutory protections apply to the specific contractual and commercial arrangements surrounding the vaccine.

The financial stakes are substantial. Under a settlement announced earlier in 2026, Moderna paid $950 million and could become liable for an additional $1.3 billion depending on the outcome of the appellate proceedings. The settlement arrangements should not be interpreted as an appellate finding that the company infringed the patents. Nor should questions raised by judges during oral argument be treated as a final ruling. Judicial questioning can indicate the issues a court considers important, but it does not necessarily establish how the judges will decide the case. The parties' legal positions remain contested until the court issues its decision.

For the wider pharmaceutical industry, the case could have implications for companies developing products under government contracts, particularly during public health emergencies. Governments frequently support research, development and procurement in areas where commercial incentives alone may be insufficient. The legal allocation of intellectual property risk can influence how companies assess participation in those programmes. The eventual judgment may therefore affect more than the financial obligations of the parties. It could help clarify the relationship between public procurement, private intellectual property rights and the legal protections available to contractors performing work associated with government programmes.